Evidence Law; Abdul Basar Laskar Vs. State of West Bengal [Calcutta High Court, 19-07-2016]

Contents

Penal Code, 1860 – Section 302/34 – Evidence Act, 1872 – Section 133 & 114 illustration (b) – Evidence of an Approver – An approver has always been regarded as an infamous witness but on his own showing as participant in a crime or crimes and later to save his own skin, pardon against his former associates and agree to give evidence against them in the hope that he would be pardoned for the offence committed by him. In doing so he may well weave some false detail into the true details of the prosecution’s story and may also falsely involve some innocent person to please the prosecution since the pardon is conditional. There is a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story. The Court has to judicially determine the extent to which the uncorroborated testimony of an approver can be considered as trustworthy by looking to other relevant material and the attending circumstances on the basis of which an accused can safely be convicted.


IN THE HIGH COURT AT CALCUTTA

Criminal Appellate Jurisdiction

Present: The Hon’ble Justice Debasish Kar Gupta And The Hon’ble Justice Md. Mumtaz Khan

Judgment on: 19/07/2016

CRA No. 403 of 2012 Abdul Basar Laskar Vs. The State of West Bengal With CRA No. 436 of 2012 Rejaul Laskar & Ors. Vs. The State of West Bengal With CRA No. 437 of 2012 Sanowar Laskar Vs. The State of West Bengal With CRA No. 443 of 2012 Anowar Hussain Malla & Anr. Vs. The State of West Bengal For the appellant in CRA 403/2012 : Mr. Dipak Kumar Sengupta, Sr. Adv. Mr. Himanshu De, Mr. Mritunjoy Chatterjee, Mr. Navanil De For the appellants in CRA 436/2012 : Mr. Himanshu De, Mr. Mritunjoy Chatterjee, Mr. Navanil De For the appellant in CRA 437/2012 : Mr. Himanshu De, Mr. Mritunjoy Chatterjee, Mr. Navanil De For the appellants in CRA 443/2012 : Mr. Subhasish Dasgupta, Mr. Anirban Roychowdhury For the State : Mr. Manjit Singh, Ld. Public Prosecutor, Mr. Ranabir Roy Chowdhury

Debasish Kar Gupta , J. :

These appeals are directed against the judgment, order of conviction dated June 14, 2012, and sentence dated June 14, 2012 passed by the learned Additional Sessions Judge, Fast Track 1st Court, Alipore in S.T. No.4(1) of 2003 arising out of S.C. No.21(1) of 2003 convicting eight appellants for commission of offence punishable under

# Section 302/34 of the Indian Penal Code

(hereinafter referred to as the I.P.C.) and sentencing them to suffer rigorous imprisonment for life as also to pay fine of Rs.5000/- each in default to suffer rigorous imprisonment of one year more.

The backdrop of the prosecution case in a nutshell is as follows:-

On October 22, 2002, Abdul Latif Halder (the victim), his wife Jarina Bibi (the PW 1), his two daughters namely, Keshida (PW 3) and Rajina (PW 4) went to the varandah situated at the northern side of their residence situated at Village-Ghola Noapara, Police Station-Usthi, District-South 24- Parganas for sleeping. Baqbull Islam Halder, son of the deceased went to sleep in the room adjacent to the aforesaid varandah.

At about 23.00 hours on the above day, the accused Saidul Haque Halder @ Kucho and Anowar Hussain Mollah (two of the appellants) called her husband. The PW 1 wake up while they were searching for her husband. Listening to her reply that her husband was not available there, the accused Saidul Haque Halder @ Kucho threatened her with dire consequences showing a knife. Other accused persons namely, Saidul Laskar, Sanowar Laskar, Ansar Laskar, Reajaul Laskar, Anowar Hussain Mollah, Anna Hussain Mollah and Ramjan Ali Sk. were also present at the place. The aforesaid accused persons found Abdul Latif Halder (the victim) and began to assault him with chopper. His wife (PW 1) started crying and caught hold of the feet of one of the accused persons, namely Musa. Musa asked the PW 1 to approach a person who was standing in the courtyard of the above house. The PW 1 found that accused Abdul Basar Laskar was standing there. She caught hold of his feet with the request to resist other accused persons from assaulting her husband. She was pushed down by him. The accused Abdul Basar Laskar told the other accused persons to finish the work quickly and to go away thereafter. At that point of time Sapuri Bibi and Asmuda Bibi (two sister-in-law) came there hearing hue and cry. After assaulting the victim further with the chopper on his head and left side of the body, the aforesaid accused persons left the place.

Thereafter Rafiqul and Samsuddin (brother-in-law of the PW 1) came to her house. PW 1 went to the Karbala Police Camp. She was accompanied by the aforesaid two sisters- in- law and as also two aforesaid brothers- in- law. The police did not respond to the call of the PW 1 and advised her to go to the Usthi Police Station. She went to the Usthi Police station. On her request, the aforesaid Samsuddin wrote a complaint and read over the same. On October 23, 2002 at 02.25 hours she submitted the above written complaint to the officer on duty in the above police station after putting her left thumb impression on the above letter of complaint. It was mentioned in the above written compliant that once her deceased husband had been threatened by Abdul Basar Laskar with dire consequences at the Usthi More. The above written complaint contained that a complaint was also lodged by her deceased husband in the Usthi Police Station informing the above incident and the G.D.E. No.899 dated October 18, 2002 was recorded on the basis of that complaint.

A general diary was recorded on the basis of the above written complaint of the PW 1 at Usthi Police Station on October 23, 2002, under G.D.E no.1123 at 02.25 hours. A formal FIR bearing Usthi P.S. Case No.106 dated October 23, 2002 was drawn at 02.25 hours against the aforesaid Abdul Basar Laskar, Saidul Haque Halder @ Kucho, Anna Hussain Mollah, Anowar Hussain Mollah, Musa and others for commission of above offence under Sections 302/34 I.P.C.

Biswajit Banerjee (PW 13), Officer in Charge of Usthi Police Station himself took up the investigation of the above case. Abhijit Mukherjee (PW 12), Sub-Inspector of Police attached to the Usthi Police Station, South 24- Parganas held inquest examination on the dead body of the victim on October 23, 2002 at 02.45 hours at the place of occurrence in connection with the aforesaid Usthi P.S. Case No.106 dated October 23, 2002 with the help of two hazzaks and one lantern and prepared the surathal report. The dead body of the victim was sent to Diamond Harbour Mahakuma Hospital for post mortem examination through Samip Sarkar (PW 11), a constable, attached to the Usthi P.S. PW 10 conducted the post mortem examination over the dead body of the victim on October 23, 2002 at 14.00 hours and prepared his post mortem report bearing no.677 on the same date with reference to Usthi P.S. Case No.106 dated October 23, 2002. According to the above post mortem report, the death of the victim was caused by shock and heamorrhage following multiple ante-mortem injuries, homicidal in nature.

After completion of the investigation, the PW 13 submitted charge- sheet bearing no.102/02 dated December 26, 2002 against the aforesaid nine accused persons for commission of offence punishable under Sections 302/34 of the I.P.C. Charge was framed against all the accused persons for commission of offence punishable under Section 302/34 of the I.P.C. Thirteen (13) prosecution witnesses adduced evidence in support of the prosecution case. The statements of the appellants were recorded under Section 313 of Cr.P.C. Two defence witnesses were examined. After considering the aforesaid evidence on record the impugned judgment was passed.

It is submitted by Mr. Dipak Kumar Sengupta, learned Senior Advocate appearing on behalf Abdul Basar Laskar, appellant in CRA No.403 of 2012 that the prosecution case was not proved beyond all reasonable doubt on the basis of the evidence on record so far as the date, time, place and the manner in which the death of the victim occurred as claimed by the prosecution. According to him, the allegation of threatening the victim with dire consequence by Abdul Basar Laskar in the event of contesting the Panchayat Election and lodging of a complaint by way of a general diary entry in the Usthi P.S. on October 18, 2002, i.e. prior to the death of the victim, were also not based on evidence. According to Mr. Sengupta, the above story was an afterthought to implicate the aforesaid Abdul Basar Laskar in the case of murder of the victim out of political enmity. It is further submitted by Mr. Sengupta that though the first information with regard to the murder of the victim had been recorded in the Karbala Police Camp, the Usthi P.S. case was initiated drawing FIR no.106 dated October 23, 2002, on the basis of a subsequent written complaint submitted by the widow of the victim (PW 1) in the Usthi P.S. at 02.25 hours on the above date. It is submitted by him that the doubt with regard to the preparation of the above letter of complaint in consultation with the investigating agency for implicating the aforesaid Abdul Basar Laskar falsely could be evident from another fact that the objection in respect of the truthfulness of writing the above written complaint by the scribe Samsuddin Haldar had not been disposed of. According to him, the aforesaid Samsuddin Haldar was illiterate and the case of withholding his evidence was to suppress the above fact.

It is also submitted that though, according to the prosecution case, two sister- in- law of the victim, namely, Sapuri Bibi and Asmuda Bibi had arrived at the place of occurrence hearing the hue and cry of the PW 1 and one Saifuddin, the nephew of the deceased, being a medical practitioner had examined the body of the victim immediately after the occurrence of the incident, those three vital witnesses were withheld by the prosecution in the trial. Mr. Sengupta draws our attention towards the evidence that the PW 1 was accompanied by two sister-in-law namely, Sapuri and Asmada as also the scribe Samsuddin while went to the Karbala Police Camp and thereafter to the Usthi P.S. Apart from withholding the evidence of the aforesaid so called scribe Samsuddin, not a single local witness other than the aforesaid four so called eyewitnesses namely, widow of the victim, the son and two daughters of the deceased respectively were produced before the Court in support of the prosecution case.

With regard to the place of occurrence, it is submitted by Mr. Sengupta that though, according to the post mortem report, two fingers from the right palm of the victim were amputed due to the assault by the accused, his amputed fingers were neither found at the place of occurrence nor those were seized.

It is also submitted by him that the identification of the miscreants was not possible due to the paucity of light, i.e. with the help of the light of a “kupi”. According to him, the possibility of PW 2 of staying in the city of Mumbai on the date and the time of occurrence of the murder of his father in connection with his job could not be ruled out from the evidence adduced by the prosecution witnesses.

With regard to the investigation of the case it is submitted by Mr. Sengupta that though blood of the deceased, blood stained soil, controlled earth were seized from the place of occurrence and sent for obtaining Forensic Serological Laboratory, no report was collected. The I.O. did not examine any of the local people who had arrived at the place of occurrence after the incident.

It is finally submitted by Mr. Sengupta that the evidence of the approver should not have been accepted by the learned trial Judge taking into consideration the relevant facts and circumstances.

Reliance is placed by Mr. Sengupta on the decisions of

# Ramesh Baburao Devaskar & Ors. vs. State of Maharashtra, reported in (2007) 13 SCC 501

# Alil Mollah & Anr. vs. State of W.B., reported in 1996 SCC (Cri) 1028

# Dinesh & Anr. vs. State of Haryana, reported in AIR 2002 SC 2374

# Tahsildar Singh vs. State of U.P., reported in AIR 1959 SC 1012

# Mrs. Shakila Khader vs. Nausher Gama & Anr., reported in AIR 1975 SC 1324

# Gopal Hansda vs. State of West Bengal, reported in 2001 Cal Cri. LR (Cal) 1

# Deny Bora vs. State of Assam, reported in (2014) 4 SCC 42

# Habeeb Mohammad vs. State of Hyderabad, reported in AIR 1954 SC 51

# Rajinder & Ors. vs. State of Haryana, reported in JT 2001 (3) SC 262

# Hate Singh Bhagat vs. State of Madhya Bharat, reported in AIR 1953 SC 468

and

# Sharad Birdhichand Sarda vs. State of Maharashtra, reported in AIR 1984 SC 1622

in support of his above submission.

Mr. Subhasish Dasgupta, learned advocate appearing on behalf of the appellants in appeal bearing CRA No.443 of 2012, adopted the submissions of Mr. Sengupta. It is also submitted by Mr. Dasgupta that in view of evidence of the PW 7, 11 and 12, there was a doubt as to whether the inquest examination was conducted at the place of occurrence or at Usthi Police Station raising a doubt with regard to the place of occurrence. It is also submitted by him that the name of his client Anowar Hussain Mollah and Anna Hussain Mollah were evident only from the evidence of PW 1 without further corroboration from the evidence of any other eyewitness.

It is also submitted by him that the statement of his clients recorded under Section 313 of the Cr.P.C. was obtained without adhering to the cardinal principles of law in recording such statements. Questions were jumbled up. According to him, the provision of Section 34 of the I.P.C. was not applicable in this case so far as his clients were concerned. Mr. Hinmanshu De appearing on behalf of the appellants in CRA No.436 of 2012 and CRA No.437 of 2012 respectively adopted the aforesaid submissions advanced on behalf of the other appellants.

On the other hand, it is submitted by Mr. Ranabir Roy Chowdhury, learned State advocate that the time of occurrence of death of the victim was 23.00 hours on October 22, 2002. According to him, no information was recorded in the Karbala Police Camp. The PW 1 and her companion were instructed to lodge complaint at the Usthi Police Station, District-South 24- Parganas. In the above police station the written complaint was scribed by one Samsuddin. According to the evidence of PW 1, the same was read over and explained before obtaining her left thumb impression on the same. Then the Usthi P.S. case was initiated after drawing formal FIR no.106 dated October 23, 2002, at 02.25 hours on the basis of G.D.E. no.1123. According to him, the inquest examination was conducted by PW 12 on the dead body of the victim at 02.45 hours on that date at the place of occurrence. He draws our attention towards the post mortem examination report to show that the same was prepared at 14.00 hours on that date with reference to Usthi P.S. Case no.106 dated October 23, 2002. He further pointed out that the name of five appellants namely, Abdul Basar Laskar, Saidul Haque Halder @ Kucho, Anna Hussain Mollah, Anowar Hussain Mollah and Musa were recorded in the FIR along with other miscreants. According to him, the entire place of occurrence was depicted in the rough sketch map which was based on evidence.

According to him, the evidence of the widow of the victim (PW 1) was corroborated by those of PW 2, PW 3 and PW 4 in support of the prosecution case so far as the place, time of occurrence and the manner in which the murder of the victim took place. According to him, all the appellants were identified in Court by the PW 1 and PW 2. PW 3 identified two appellants namely, Saidul Laskar and Rejaul Laskar in Court. They were not shaken in course of cross-examination.

With regard to the failure on the part of the investigating officer to collect the FSL report of the seized blood, blood stained earth and controlled earth did not stand in the way of proving the commission of offence by the appellant beyond all reasonable doubts in view of the evidence adduced by the eyewitnesses as also the evidence of the approver. With regard to the evidence of the approver, it was preceded by his statement recorded under Section 164 of the Cr.P.C.

Reliance is placed by Mr. Roy Chowdhury on the decisions of

# State of U.P. vs. Krishna Master, reported in 2010 (12) SCC 324

# Prithipal Singh vs. State of Punjab & Anr., reported in 2012 (1) SCC 10

# Joginder Singh vs. State of Haryana, reported in 1995 SCC (Cri) 178

# Ramji Singh & Anr. vs. State of Bihar, reported in 2001 (9) SCC 528

# C. Muniappan & Ors. vs. State of Tamil Nadu, reported in 2010 (9) SCC 567

# Hema vs. State, thr. Inspector of Police, Madras, reported in 2013 (10) SCC 192

# Nar Singh vs. State of Haryana, reported in 2015 (1) SCC 496

# Liyakat & Anr. vs. State of Rajasthan, reported in 2014 AIR (SCW) 5876

and

# Nathuni Yadav vs State of Bihar, reported in 1998 (9) SCC 238

in support of his above submissions.

We have heard the learned Counsels appearing for the respective parties at length and have considered the facts and circumstances carefully. In course of our judicial review of the decision making process of the learned trial Judge, we find that the impugned conviction was based on the evidence of four eyewitnesses of the prosecution and that of one approver as also documentary evidence brought on record in support thereof. Eyewitnesses were the widow, son and two daughters (both were child witnesses) of the deceased person respectively. The approver was a co-accused, who had been arrested during the commencement of the trial.

PW 1 was the widow of the deceased person. According to her evidence, the murder of the deceased person occurred on October 22, 2002 at 23.00 hours when the deceased person had been lying on his bed in the northern side pass varandah of their residence. She had been also lying on her bed in the aforesaid varandah with her two daughters, PW 3 and PW 4 at the material point of time. According to her evidence, the cause of death of the deceased was sustaining of severe multiple injuries on his body arising out of assault with the help of sharp cutting weapon (chopper). There was corroboration of the above evidence with that of another eyewitness PW 3, amongst other eyewitnesses. PW 3 was one of the daughters of the deceased person. She being a child witness was tested in open Court at the time of adducing evidence. It appeared that she had power of understanding and capacity to answer question in her own language and manner like a normal child of her age.

Similarly, PW 4 was another daughter of the deceased person. She also being a child witness was tested in open Court. It also appeared that she had power of understanding and capacity to answer question in her own language and manner like a normal child of her age. The time and place of occurrence of unnatural death of her father (the victim) as evident from the evidence of PW 1 was fully corroborated by her evidence.

The PW 2 was the son of the deceased person. He had been lying on his bed in a room adjacent to the aforesaid pass verandah. According to his evidence, there was a small window on the northern side of the above room from which the northern side pass verandah under reference was visible. His evidence was also fully corroborating with those of the PW 1, PW 3 and PW 4, so far as the date, place and time of occurrence of death of the victim was concerned.

The above evidences were in corroboration with each other regarding the date, the time and the place of occurrence of the above incident. Those were also in corroboration with the documentary evidences namely, the FIR bearing Usthi P.S. Case No.106 drawn on October 23, 2002 at 02.25 hours with reference to G.D.E. No.1123, surothal report dated October 23, 2002 prepared by the PW 12 as also the post mortem report dated October 23, 2002 prepared by the PW 10 with reference to the above FIR on the basis of examination of body of the deceased at 14.00 hours on that date. Necessary to point out that according to the evidence of PW 1, the written complaint was read over and explained to her by the scribe. Noteworthy, according to the post mortem report “rigor mortis” was present in the body of the deceased at the time of the examination. We are of the opinion that the impugned judgment does not require our interference so far as the date, time and place of occurrence of unnatural death of the victim was concerned.

While considering the above contention of the appellants, we find from the evidence of PW 1 that amongst the appellants Kucho, Anowar called her deceased husband (the victim) in a loud voice arriving at the place of occurrence. After finding out the victim the aforesaid two appellants along with other appellants, save and except Abdul Basar Laskar (appellant in CRA No.403 of 2012), began to assault the victim with chopper. She identified all the appellants in Court on dock.

The evidence of PW 1, up to the aforesaid part, corroborated fully with that of PW 2, another eyewitness, who had witnessed the above incidents through the window of the adjacent room. According to his evidence, Kucho, Musa, Anowar, Sanowar, Rejaul, Saidul and Ramjan took active part in assaulting his father with chopper. Out of fear he could not come of the room. He came out of his room after the aforesaid appellants had left the place of occurrence. He found his father (the deceased) in a pool of blood. According to him, the deceased sustained injuries all over his body including head and back. He identified Sanwar, Rafiqul, Saidul and Ramjan (who were present in Court) on dock.

Necessary to point out that the source of light at the place of occurrence was a “kupi” placed in the open pass verandah under reference. Regarding the contention of the appellants for casting doubt on the evidence of the PW 2, amongst other eyewitnesses, to identify/recognise the aforesaid appellants due to paucity of light, it is the well settled principles of law that it would be possible for a victim or a witness to identify an assailant in insufficient light from his voice, gait, features, etc., with whom he was fairly acquainted or was in intimate terms. Reference may be made to the decision of Dalbir Singh vs. State of Haryana, reported in (2008) 11 SCC 425 and the relevant portion of the above decision is quoted below:-

“11. In Anwar Hussain v. State of U.P. it was observed that even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice, gait, features, etc. Therefore, there is nothing to discard the evidence of PW 8 so far as his claim to have recognised the appellant is concerned.”

In

# Nathuni Yadav & Ors. vs. State of Bihar & Anr., reported in (1998) 9 SCC 238

it was observed by the Hon’ble Supreme Court that when the assailants had adequate light, though meagre, to identify the victim whom they targeted without any mistake from among those who were sleeping at the place of occurrence, there was no reason to assume that it would not have been possible for the victims or the eyewitnesses to see the assailants or that there was possibility for making a wrong identification of them. The relevant portion of the above decision is quoted below:-

“9. . . . . We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. If the light then available, though meagre, was enough for the assailants why should we think that the same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander.”

The evidence of PW 3 also depicted the same picture of the incident. Appellants Rejaul and Saidul were previously known to PW 3 and her family members. She recognised Saidul and Rejaul who were initially in search of her father (the deceased) shouting in a loud voice. According to her evidence, they, along with others, assaulted her father on different parts of his body, namely, head, shoulder, etc. There was profuse bleeding from those injuries. Ultimately her father succumbed to death. She identified all the appellants in Court on doc.

PW 4 was another child eyewitness. Though she could not identify any particular miscreant, she narrated the entire incident fully in corroboration with the evidence of the PW 1, PW 2 and PW 3. Noteworthy, that none of the above witnesses was shakened during cross-examination. Considering the evidence of the PW 1 that she went to the Usti police station to submit her written complaint on the advice of the police, who were present in Karbala police camp, as also after considering relevant documentary evidences, namely the inquest report, the post mortem report, which had been prepared at the material point of time with reference to the FIR bearing Usti P.S. Case No.106 dated October 23, 2002, we do not find substance in the submission that the FIR was anti-dated.

Regarding failure on the part of the investigating agency to collect blood report of the deceased as also the reports of blood stained soil and controlled earth of the place of occurrence from the Forensic Serological Laboratory, in

# Promode Dey vs. State of West Bengal, reported in (2012) 4 SCC 559

it was decided by the Hon’ble Supreme Court that non- collection of FSL report might be a defect of investigation which could not result in acquittal of an accused against whom enough evidence was available for conviction. The relevant portion of the above decision is quoted below:-

“13. The learned counsel for the respondent argued that the fact that the FSL report was not collected from the FSL may be a defect in the investigation but a defect in investigation cannot result in acquital of an accused against whom enough evidence is available for conviction. In support of this proposition, he relied on the decision of this Court in Ramappa Halappa Pujar v. State of Karnataka.”

Regarding the submissions made by Mr. Subhasish Das Gupta, Learned advocate appearing for the accused persons, namely Anowar Hussain Malla and Anna Hussain Malla, the presence of Anowar Hussain Mollah at the place of occurrence at the material point of time was surfaced from the evidence of eye witness PW 3 apart from and in addition to mentioning of their names in the FIR as also in the evidence of the PW 1. That apart both of them were absconding after the death of the victim. On October 2, 2002, the PW 13 (I.O.) submitted a prayer before the Learned S.D.J.M., Diamond Harbour, for issuing warrant of arrest against them, amongst other accused persons. Ultimately, on December 11/13, 2002, both of them were arrested on the basis of the statement of co-accused Rejaul Laskar.

Regarding the next contention of Mr. Das Gupta that relevant questions had not been asked to his clients at the time of recording their statements under Section 313 of the Cr.P.C., it is the well settled proposition that an accused has a duty to furnish an explanation in his statement underSection 313 of the Cr.P.C. regarding any incriminating material that has been produced against him. In the event, the accused choose to remain in complete denial when his statement is being recorded, the Court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. Reference may be made to the decision of

# Harivadan Babubhai Patel vs. State of Gujarat, reported in (2013) 7 SCC 45

and the relevant portion of the above decision is quoted below:-

“28. Another facet is required to be addressed to. Though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. (See State of Maharashtra v. Suresh.) In the case at hand, though a number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him.”

The above principle of law has been repeated and reiterated in

# Phula Singh vs. State of Himachal Pradesh, reported in (2014) 4 SCC 9

and the relevant portion of the above decision is quoted below:-

“11. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide Ramnaresh v. State of Chhattisgarh, Muhish Mubar v. State of Haryana and Raj Kumar Singh v. State of Rajasthan.)”

In the present case, it is evident from question no. 3 was asked to both of the appellants containing sufficient incriminating materials against them for the purpose of recording their statements under Section 313 of the Cr.P.C. Both of them made only bald denials of all those incriminating circumstances put to them, and had no explanation to offer. So, that was the circumstance which was leading towards drawing of an adverse inference against them.

Regarding the next contention of Mr. Das Gupta, the existence of a common intention animating the aforesaid two appellants, leading to the commission of offence under reference, in furtherance of such intention, amongst other accused person, had been fully established from the attaining facts and circumstances as discussed hereinabove.

Regarding the evidence of the approver, it would be profitable to discuss the settled principles of law before analysing his evidence, a part of which was relating to the role played by the aforesaid Abdul Basar Laskar in commissioning the offence under reference. In State of A.P. vs. Cheemalapati Ganeswara Rao, reported in AIR 1963 SC 1850, it was observed by a three Judges Bench of the Hon’ble Supreme Court that in order to accept the evidence of the approver some usual tests such as the probability of the truth of what he has deposed to, the circumstances in which he has come to give evidence, whether he has made a full and complete disclosure, whether his evidence is merely self-exculpatory, amongst other must be determined. Further it has to be ascertained in course of judicial review as regards the reliability of the approver whether his evidence has been corroborated sufficiently in material particulars. The relevant portion of the above decision is quoted below:-

“55. . . . . Whether the evidence of the approver should in any given case be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to, the circumstances in which he has come to give evidence, whether he has made a full and complete disclosure, whether his evidence is merely self-exculpatory and so on and so fourth. The court has, in addition, to ascertain whether his evidence has been corroborated sufficiently in material particulars. What is necessary to consider is whether applying all these tests the evidence of the approver should be acted upon”.

In

# Ram Narain vs. State of Rajasthan, reported in (1973) 3 SCC 805

it was observed by another three Judges Bench of the Hon’ble Supreme Court that Section 133 of the Indian Evidence Act, expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on uncorroborated testimony of an accomplice. But this section has to be read along with illustration (b) of Section 114 of the above Act which empowers the court to presume the existence of certain facts and make clear by means of examples as to what facts the court shall have regard in considering whether or not the maxims illustrated apply to a given case before it. Illustration (b) in expressed terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. The Hon’ble Supreme Court further observed that a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story falsely involving some innocent person. Therefore, the Court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which an accused can be safely convicted. The relevant portion of the above decision is quoted below:-

“8. . . . . An approver who is admittedly guilty of the crime is an accomplice who has betrayed his associates and has apparently sought pardon for saving his own skin. In other words he has purchased complete immunity for his prosecution at the expense of his associates by agreeing to give evidence against them for the prosecution. He is, therefore, presumed not to be a man of high character or a fair witness. His pardon being conditional to please the prosecution he may well weave some false detail into the true details of the prosecution story and may also falsely involve some innocent person. There is thus a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story. It is for this reason that the courts as a matter of prudence and caution anxiously look for some corroboration to satisfy their conscience that the approver’s testimony which is clearly admissible is also worthy of belief credit. One can of course visualize an accomplice who is genuinely repentant for the commission of his crime and truly desires to make a clean breast of the whole affair by way of penitence. But even in such cases the court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. The rule which seems to emerge from the foregoing discussion and judicial decisions is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration must be dearly present to the mind of the judge.”

(Emphasis supplied)

In the matter of

# Ravinder Singh vs. State of Haryana, reported in (1975) 3 SCC 42

it has been repeated and reiterated once again that certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based. The relevant portion of the above decision is quoted below:-

“12. An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion on guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approver’s statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based.”

(Emphasis supplied)

To sum up the above observations of the Hon’ble Supreme Court in different cases from time to time, we find that an approver has always been regarded as an infamous witness but on his own showing as participant in a crime or crimes and later to save his own skin, pardon against his former associates and agree to give evidence against them in the hope that he would be pardoned for the offence committed by him. In doing so he may well weave some false detail into the true details of the prosecution’s story and may also falsely involve some innocent person to please the prosecution since the pardon is conditional. There is a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story.

In order to rule out the above possibility, the Hon’ble Supreme Court took considerations the provisions of Section 133 of the Indian Evidence Act along with illustration (b) of Section 114 of the above Act. Needless to mention that the former expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice. While the latter provision deals with burden of proof with the aid of illustration (b) in express terms saying that an accomplice is unworthy of credit unless he is corroborated in material particulars. As a result the golden threat of applying the caution in accepting the evidence of approver, a safeguard has been introduced by the Apex Court that the Court has to judicially determine the extent to which the uncorroborated testimony of an approver can be considered as trustworthy by looking to other relevant material and the attending circumstances on the basis of which an accused can safely be convicted.

At the outset, while considering the antecedents of the approver, we find that the approver himself admitted in course of cross-examination that beside the present case, another criminal case was pending against him at Diamond Harbour Court. The charge against him in that case was murder of a person. Therefore, the present case is not the first instance of commission of murder in his life which stands in the way of accepting his repentant after murder of the victim.

While examining the decision making process of the learned Court below, we find that the approver in his evidence stated that there was a threatening held by the aforesaid appellant Abdul Basar Laskar to the victim prior to the death of the victim. It was a piece of hearsay evidence.

According to the prosecution case, the aforesaid appellant Abdul Basar Laskar had threatened the victim at Vutal Paribahan Bus Stand near Usthi More with dire consequences to kill him due to the political cause on October 16, 2002 in presence of PW 5, PW 6 and PW 9. According to the evidence of PW 1, her husband had came back to his residence on the date of the above incident in a pensive mood and on asking her husband (victim) disclosed the incident to PW 1. According to further deposition of PW 1, the victim lodged a general diary with regard to the above incident in the Usthi Police Station before he had come to his residence. But on perusal of the documentary evidence we find that a loose sheet general diary register was exhibited (Mat. Ext.-9) showing G.D.E. no.899 dated October 18, 2002 of Usthi Police Station. According to the above G.D. Entry, the same was lodged two days after the above incident had taken place. According to the evidence of PW 5, the appellant Abdul Basar Laskar asked the PW 9 (the owner of the tea stall concerned) from the window of a bus of “service transport” (Vutal Paribahan) to call the victim. On arrival of victim he threatened him with dire consequences. But PW 9 was declared hostile by the prosecution after he had denied the aforesaid incident in evidence. The evidence of another eyewitness of the above incident PW 6 had contradictions of material dimension with the evidence of PW 1. According to his evidence, a bus of “Vutal Paribahan” was coming from Mogra side and it was on its way to Kolkata. According to the evidence of Pw 5, the direction of the above bus was just the reverse. We further find that though the entire general diary of the Usthi Police Station was accepted, the relevant document bearing G.D. Entry no.899 dated October 18, 2002 was exhibited as a loose sheet separately. In view of the above contradictions in the evidence of material dimension the doubt with regard to the above incident of threatening cannot be ruled out.

The deposition of the approver with regard to assembling of all the appellants in the courtyard of a High School of Uttar Kusum nearby the place of occurrence before committing the offence under reference under the leadership of the aforesaid appellant Abdul Basar Laskar had not been corroborated in material particulars on the basis of evidence available on record.

The deposition of the approver with regard to the presence of the above appellant Abdul Basar Laskar in the house of the deceased at the date and time of occurrence was in corroboration with that of evidence of PW 1 only. According to the evidence of PW1, her two sisters-in-law, namely Sapuri Bibi and Asmuda Bibi, had witnessed the presence of the appellant Abdul Basar Laskar at the place of occurrence. None of them adduced evidence before the trial court as prosecution witness. From the evidence of other eyewitness, the presence of the above appellant had not been corroborated. We are of the opinion that the evidence of PW 1 should not be accepted as a clinching piece of evidence in respect of the presence of the appellant Abdul Basar Laskar at the courtyard of residence of the deceased at the material point of time and his participation in the commissioning of offence of killing the deceased in view of our observations made hereinabove with regard to her claim of threatening her deceased husband by the appellant Abdul Basar Laskar prior to his (the deceased) death. In view of the above, the doubt of implicating the above appellant falsely could not be ruled out. For the same reason, the corroboration of that evidence by the approver should not be accepted free from reasonable doubt on the basis of the principle of law laid down in the case of Ram Narain (supra).

In the decision of Prithipal Singh (supra), that conviction could lawfully rests upon the uncorroborated testimony of an accomplice, yet the Court is entitled to presume and might indeed, be justified in presuming in the generality of cases that no reliance could be placed on the evidence of an accomplice unless the evidence was corroborated in material particulars, meaning thereby that there had to be some independent witness tending to incriminate the particular accused in the commission of the crime. That apart, in view of the distinguishable facts and circumstances of the above case the credibility of the evidence of accomplice was examined. Therefore, the above decision does not help the State respondents.

In the matter of Krishna Master (supra), the Hon’ble Supreme Court found that the solitary statement of a witness was cogent, consistent and reliable. But in view of the distinguishable facts and circumstances of the present case absence of two sisters-in-law, namely, Sapuri Bibi and Asmuda Bibi before the Court to adduce evidence as prosecution witness leads to reasonable doubt. In our mind, so far as the presence of the appellant Abdul Basar Laskar at the place of occurrence was concerned as discussed hereinabove. Therefore, the above decision also does not help the State respondents.

However, regarding the rest part of evidence of the approver (PW 8) relating to the presence of other appellants, namely, Reajul Laskar @ Md. Reajul Haque Laskar, Saidul Laskar, Ramjan Ali @ Ramjan Ali Sk and Ansar Molla @ Ansar Laskar (appellants in CRA No.436 of 2012), Sanowar Laskar (appellant in CRA No.437 of 2012), Anowar Hussain Molla and Anna Hussain Molla (appellants in CRA No.443 of 2012) were concerned, we find corroboration of such testimony of the approver in this regard from the evidence of all other eyewitnesses, i.e. PW 2, PW 3 and PW 4. In our opinion the above corroboration apart from the ocular evidence of the PW 1, PW 2, PW 3, PW 4 as also the documentary evidences namely, the FIR bearing Usthi P.S. Case No.106 dated October 23, 2002, surathal report dated October 23, 2002 prepared in connection thereto as also the post mortem report dated October 23, 2002 of dead body of the victim read with the evidence of PW 10 (who had prepared the above post mortem report), were the relevant materials and attending circumstances on the basis of which the conviction of aforesaid seven appellants other that the appellant Abdul Basar Laskar need not be interfered with Therefore, the appeal bearing CRA No.403 of 2012 is allowed and the appellant Abdul Basar Laskar is acquitted giving him benefit of doubt after partial setting aside of the impugned judgement, order of conviction and sentence to that extent so far as the above appellant is concerned. The appellant Abdul Basar Laskar be set free forthwith, unless his detention is required in any other case.

These appeals bearing CRA Nos.436 of 2012 and 443 of 2012 are dismissed. The bails which have been granted to the appellants, namely Reajul Laskar @ Md. Reajul Haque Laskar and Saidul Laskar in CRAN 3632 of 2013 (arising out of CRA No.436 of 2012) on December 16, 2013, namely Ansar Molla @ Ansar Laskar in CRAN 3866 of 2013 (arising out of CRA No.436 of 2012) on December 19,2013, namely Ramjan Ali @ Ramjan Ali Sk in CRAN 3929 of 2013 (arising out of CRA No.436 of 2012) on December 24, 2013, namely Anowar Hussain Mollah and Anna Hussain Mollah in CRAN 3950 of 2013 (arising out of CRA No.443 of 2012) on January 28, 2014, respectively, are, therefore, cancelled and the aforesaid appellants are directed to surrender before the learned Court below within a period of fortnight from the date of this judgment for serving the sentence. In the event of failure on the part of any of the above appellants to comply with the above direction, the learned Court below shall take appropriate steps in the matter.

In the appeal bearing CRA No.437 of 2012 read with CRAN 1386 of 2013, the claim of juvenility of the appellant Sanowar Laskar (on the date of commission of offence) was considered. After obtaining a report from the learned District & Sessions Judge, 1st Fast Track Court at Alipore, South 24-Parganags, the age of the aforesaid appellant was ascertained by the Court as 15 years and 15 days on the date of commission of offence, consequent thereupon, by an order dated December 17, 2013, the privilege of suspension of sentence was extended to the aforesaid appellant during the pendency of this appeal as also he was released on bail. In view of the above, we treat the aforesaid appellant Sanowar Laskar as juvenile in conflict with law and the aforesaid appeal stands disposed of recording our finding in the light of the judgment of the Hon’ble Supreme Court passed in the matter of

# Jitendra Singh alias Baboo Singh & Anr. vs. The State of Uttar Pradesh, reported in (1981) 4 SCC 149

as under:

The appeal bearing CRA No.437 of 2012 is, thus, disposed of affirming the impugned conviction of the appellant, namely Sanowar Laskar but altering the impugned sentence, the fine imposed upon the appellant and the default sentence by reducing the period of his rigorous imprisonment to three years in view of the provisions of Clause (g) of sub-section (1) of Secton 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with the provisions of sub-rule (13) of Rule 15 of the Juvenile Justice (Care and Protection of Children) Rules of 2007. The period of detention of the appellant Sanowar Laskar undergone during the investigation, trial and this appeal be set off against the period of substantive sentence of imprisonment stated hereinabove under the provisions of Section 428 of the Cr.P.C.

Let copy of this judgement together with lower Court’s record be send down to the Trial Court by a special messenger of this Court forthwith for taking necessary steps in compliance of this judgement.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.

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