Place of Occurrence; Asraf Biswas Vs. State of West Bengal [Calcutta High Court, 11-08-2016]

Contents

Penal Code, 1860 – Ss. 302/34 – Once it is held that the place of occurrence has not been established beyond all reasonable doubts, then the other circumstances are hardly sufficient to establish the guilt of the accused.

# Place of Occurrence


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: 11/08/2016

CRA No. 840 of 2013

Asraf Biswas Versus The State of West Bengal With CRA No.892 of 2013 Jahiruddin Molla & Ors. Versus The State of West Bengal For the appellant in CRA 892 of 2013 : Mr. Sekhar Basu, Sr. Advocate Mr. Robiul Islam For the appellant in CRA 840 of 2013 : Mr. Milon Mukherjee, Sr. Advocate Mr. Biswajit Manna For the de facto complainant : Mr. Shahan Shah For the State : Mr. Sabyasachi Banerjee Mr. Ranabir Roy Chowdhury

Debasish Kar Gupta , J. :

Out of the aforesaid two appeals, the former one bearing CRA No.892 of 2013 is preferred by twelve (12) appellants and the later one bearing CRA No.840 of 2013 is preferred by one (1) appellant against a common judgment and order of conviction dated September 26, 2013 and sentence dated September 27, 2013, passed by the Additional District & Sessions Judge, 1st Fast Track Court, Berhampur, District-Murshidabad in Sessions Trial No.03 (09) 2007 arising out of Sessions Case No.459 of 2003 convicting all the appellants for commission of offence punishable under Section 302/34 of the Indian Penal Code, 1973, (hereinafter referred to as the I.P.C.) and sentencing them to suffer rigorous imprisonment for life as also to pay a fine of Rs.5000/- each, in default, each to suffer simple imprisonment for further period of five months.

According to the prosecution case, on June 20, 1998, at about 18.00 hours Md. Abdulla Mondal (deceased), son of Hazi Ali Rahaman Mondal and Islam Sk (deceased), son of Khoda Baks Sk of village-Dilalpur, Police Station- Hariharpara, District-Murshidabad, were returning home from Mamudpur Haat. After crossing Durlavpur Khal they reached near the house of one of the appellants Jahiruddin Molla. The aforesaid appellant hurled a bomb towards them. As a result, both of them fell down from their cycles. Appellants Asraf Biswas, Sajomoddin Biswas, Kalam Biswas started to assault them with “henso” and “pashli”. Both of the aforesaid victims sustained severe injuries on their bodies and succumbed to death at the place of occurrence. Imdadul Biswas, Fajil Sk., Jakir Sk., Sader Sk., Sahid Malikhya, Israil Sk., (appellants) Maharam Sk. and some other miscreants (all of Dilalpur) were also took part in the commission of offence. The villagers made attempt to resist them. The aforesaid assailants attacked them with deadly weapons like ballam, henso, bomb, fire arms, etc. PW 1, full brother of Md. Abdulla Mondal (deceased) as also the cousin brother of Islam Mondal (deceased) arrived at the place of occurrence after hearing the sound of a bomb blast. According to the prosecution case, PW 6 is one of the eyewitnesses of the above incident. He informed the PW 1 of the entire incident of commission of murder of the aforesaid victims.

On receipt of an information over telephone from PW 8, at 18.35 hours on that date, the Officer-in-Charge (PW 13) of Hariharpara Police Station rushed with his force to the place of occurrence at Dilalpur village under Hariharpara Police Station after making an entry in the general diary of the above police station. After reaching the place of occurrence he found there the dead bodies of the aforesaid two victims.

PW 1 submitted a written complaint to him at the place of occurrence at 21.00 hours. He forwarded the above written complaint to Hariharpara Police Station through Home Guard No.90, namely, Nripen Das. Formal First Information Report (hereinafter referred to as FIR) bearing Hariharpara P.S. Case no.62 of 1998 dated June 20, 1998, was drawn on the basis of the above written complaint after making entry in the general diary bearing G.D.E. no.639 dated June 20, 1998 at 22.15 hours. According to the written compliant, the death of the aforesaid two victims was preceded by an incident of hurling bomb at the house of Kheder Sk. as also ransacking of his house at the instance of the appellants and their associates which had taken place at 08.00 hours on the same date i.e. on June 20, 1998.

PW 14 was engaged as Investigating Officer to investigate into the matter. The PW 13 prepared inquest reports dated June 20, 1998 after conducting surothal examination on the dead bodies of the aforesaid deceased persons at 21.30 hours. The PW 1, PW 3, PW 4 and PW 7 were the witnesses of the above inquest reports.

The dead bodies of the aforesaid victims were sent to Berhampur Police Morgue through Montaj Molla, Home Guard no.495 attached to Hariharpara Police Station. The PW 12 conducted post mortem examination on the dead bodies of the aforesaid deceased persons, namely, Md. Abdulla Mondal and Islam Mondal on June 21, 1998 at 13.30 hours and 15.05 hours respectively.

Charge sheet bearing no.39 of 1999 dated April 30, 1999 was submitted before the trial Court against all the sixteen (16) accused persons for commission of offence punishable under Sections 302/34 of the I.P.C. and Sections 3 and 4 of the E.S. Act. Charge was framed on November 6, 2006 against sixteen (16) accused persons including the appellants only for commission of offence punishable under Sections 302/34 of the I.P.C.

Fourteen (14) prosecution witnesses and two (2) defense witnesses were examined in course of trial. The statements of the accused persons were recorded under Section 313 of the Cr.P.C.

After considering the evidence on record, the impugned judgment was passed convicting the appellants for commission of offence punishable under Sections 320/34 of the I.P.C. Three (3) other accused persons namely, (1) Sahid Malitha, (2) Jalimuddin and (3) Madar Sk. were acquitted from the charge framed against them.

It is submitted by Mr. Sekhar Basu, learned Senior Advocate appearing on behalf of the appellant in CRA 892 of 2013, that there was inordinate delay of 5 days in forwarding the FIR to the Court concerned.

According to him, though the names of the appellants had been known to all the 4 witnesses of the inquest report, the name of a single appellant was not disclosed in the inquest reports as person responsible for commissioning of murder of the victims.

It is further submitted by him that the opinions of the doctor with regard to the cause of death of the deceased persons were not available in the post mortem reports. Therefore, according to Mr. Basu, the cause of death, as claimed by the prosecution, was not based on the medical evidence.

It is also submitted by Mr. Basu that it was evident from the evidence of the prosecution witness that an incident of hurling of bomb in the house of Kheder Sk. as also ransacking of his house took place on June 20, 1998 at about 08.00 hours, i.e. the date of occurrence of death of the deceased.

Drawing our attention towards the contradictions in the evidence of prosecution witnesses with regard to the address of Jahiruddin Molla, an appellant, non-availability of the Forensic Serological Report of the P.M. blood, wearing apparels of both the dead bodies and blood stained earth and controlled earth of the alleged place of occurrence, non-seizure of the bicycles which had been claimed to be used by the deceased persons, non-seizure of any materiel in support of the claim of the prosecution of hurling bomb by the aforesaid Jahiruddin Molla, contradictions regarding the place of submitting the written complaint and contradictions leading to doubt about the presence of the alleged eyewitnesses, namely, PW 2, PW 3, PW 5 and PW 11, it is submitted by Mr. Basu that the same created a lot of doubtof material dimension about the date, time and the manner in which the prosecution claimed the occurrence of death of the victims. Or in other words, the prosecution failed to bring home the case of commission of offence by the appellants.

Mr. Basu relied upon the decisions of

# Hamid Mondal & Ors. vs. The State of West Bengal, reported in (2015) 2 C Cr LR (Cal) 882

# Sayed Ibrahim vs. State of Andhra Pradesh, reported in JT 2006 (6) SC 597

# State of Gujarat vs. Patel Mohan Mulji & Anr., reported in 1994 CRI. L.J. 280

# Mobarak Sk. @ Mobarak Hossain & Ors. vs. The State of West Bengal, reported in (2011) 1 C Cr LR (Cal) 687

# Fanil Das & Ors. vs. State of West Bengal, reported in 2014 (3) CLJ (Cal) 108

# Bijendra Bhagat vs. State of Uttarakhand, reported in (2016) 1 SCC (Cri) 171

# Sanjay vs. State of Uttar Pradesh, reported in AIR 2016 SC 282

# Nankaunoo vs. State of U.P., reported in AIR 2016 SC 447

# Motilal & Anr. vs. State of Rajasthan, reported in (2009) 3 SCC (Cri) 444

# Ramesh Baburao Devaskar & Ors. vs. State of Maharashtra, reported in (2009) 1 SCC (Cri) 212

# Balaka Singh & ors. vs. The State of Punjab, reported in AIR 1975 SC 1962

# Paresh Chandra Mondal & Anr. vs. The State of West Bengal, reported in (2016) 2 CAL LT 400 (HC)

# Mamfru Chowdhury & Ors. vs. King Emperor, reported in AIR 1924 Calcutta 323

and

# Rameshwar Dayal & Ors. vs. State of U.P., reported in AIR 1978 SC 1558

in support of his above submissions.

While adopting the aforesaid submissions, it is further submitted by Mr. Milon Mukherjee, learned Senior Advocate appearing on behalf of the appellants in the appeal bearing CRA 840 of 2013, that there were contradictions with regard to location of the residential house of the aforesaid appellant which was mentioned as the place of occurrence. He referred to the FIR, the rough sketch map of the place of occurrence, the charge, evidence of the PW 2, PW 3, PW 8, PW 11, amongst other prosecution witnesses, the arrest memo of the aforesaid appellant and the charge sheet in support of his above submission.

Referring to the time of examination of the dead bodies by the PW 13 as mentioned in the inquest reports of dead bodies of the deceased and the time of drawing FIR under reference, it is submitted by him that the time of occurrence of the death as claimed by the prosecution was not proved beyond all reasonable doubts. It is further submitted by him that the presence of rigor mortis being the established factor for ascertaining the death of a victim, absence of rigor mortis in the bodies of the victims, as evident from their post mortem reports, created further doubt about the place and time of occurrence and their death as claimed by the prosecution.

Reliance is place by Mr. Mukherjee on the decisions of

# Ishwar Singh vs. The State of Uttar Pradesh, reported in AIR 1976 SC 2423

# Mehaaj Singh (L/Nk.) vs. State of U.P., reported in 1994 SCC (Cri) 1390

# Rebati Baidya & Ors. vs. The State of West Bengal, reported in (2014) 1 C Cr LR (Cal) 171

and

# State of Maharashtra vs. Raju Bhaskar Potphode, reported in (2008) 1 SCC (Cri) 19

in support of his above submissions.

It is submitted by Mr. Sabyasachi Banerjee, learned State Advocate, while vividly opposing the aforesaid submissions made on behalf of the appellants, that no objection was raised at the time of bringing the FIR on record with regard to delay in forwarding the FIR to the Court. According to the evidence of PW 13, the FIR, seizure lists and other documents were forwarded to the Court of learned Sub-Divisional Judicial Magistrate, Berhampur through a special messenger. Therefore, there was no delay in forwarding the same to the court.

Drawing our attention towards the evidence of PW 8, the time of receiving the written complaint and drawing of the formal FIR with reference to general diary entry, time of receiving the dead bodies in the morgue and time of post mortem examination, it is submitted by Mr. Banerjee that the appellants were not falsely implicated in the matter on the basis of settled principle of law with regard to external check of removal of doubt of implication of an innocent person in the mater of commissioning of offence falsely.

Drawing our attention to the evidence of PW 2, PW 3, PW 5 and PW 7, it is further submitted by Mr. Banerjee that none of them were shaken during cross-examination. Our further attentions have been drawn towards the evidence of PW 10, PW 12, PW 13 and PW 14 to submit that the prosecution case was proved beyond all reasonable doubts.

Reliance is placed by Mr. Banerjee on the decisions of

# Pedda Narayana & Ors. vs. State of Andhra Pradesh, reported in (1975) 4 SCC 153

and

# Gonchi Rajashekhar Reddy, reported in (2006) 9 SCC 535

in support of his above submissions.

We heard the learned Counsels appearing for the respective parties at length as also have the facts and circumstances of these appeals.

According to the prosecution case, amongst the four (4) witnesses of the inquest report, PW 3 and PW 4 claimed to be the eyewitnesses of the death of the victims. According to the evidence of PW 2 in examination-in- chief, he had witnessed the killing of the aforesaid deceased persons by the appellants. In course of cross-examination he deposed that he had disclosed the name of the assailants of the deceased persons before the PW 13. Though he had not witnessed the murder of the victims, he arrived at the place of occurrence immediately after the murder of the victims took place. PW 7 had reached the place of occurrence before the police party arrived there on the date of occurrence. In course of cross-examination, the PW 13 deposed that he need not record the name of any accused person in the inquest report if there was disclosure of any name of accused person by any witness of the inquest report. But the names of the appellants were not recorded in the inquest reports at the time of recording preliminary history of unnatural deaths.

In

# Jaharlal Das vs. State of Orissa, reported in (1991) 3 SCC 27

the Hon’ble Supreme Court took note of the similar fact observed that though the purpose of inquest report was only to ascertain the cause of death at least the fact relating to discovery of the dead body disclosed in the FIR should be mentioned in inquest report. The relevant portion of the above decision is quoted below:-

“10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . According to this evidence the accused is alleged to have been taken PW 11 and others to the open paddy field where the dead body was lying. It is only thereafter that the inquest report was drawn up. However, PW 11 stated in his evidence that before going to the paddy field the FIR Ex. P. 10 was drawn up by him. Surprisingly we find a mention about the discovery of the body in the FIR itself. But the same is not found in the inquest. There is not even a reference to the accused in the column No.9 of the inquest report where the information of witness as to the cause of death has to be noticed. We are aware that the purpose of inquest report is only to ascertain the cause of death but in a case of this nature there should have been at least a mention in the inquest report as to how the body was discovered.”

Therefore, taking into consideration the facts and circumstances of the instant case we are of the opinion that the learned Court below failed to take note of the above infirmity which was an alarm for him to examine the prosecution case on the basis of the available evidence more cautiously.

The aforesaid observation leads us to another peculiar fact of this case that though the FIR was lodged on the date of incident, i.e. on June 20, 1998 at 18.35 hours, it was placed before the Court of learned Sub-Divisional Judicial Magistrate on June 26, 1998.

In

# Meharaj Singh vs. State of U.P., reported in (1994) 5 SCC 188

the Hon’ble Supreme Court as follows:-

“12. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.”

The above proposition of law was repeated and reiterated by a three Judges Bench of the Hon’ble Supreme Court in

# Thanedar Singh vs. State of M.P., reported in (2002) 1 SCC 487

with the observation that failure to send the FIR to the Court of learned Magistrate at an inordinate delay having no explanation for the same cast doubt about the prosecution case so far as the place and time of occurrence and the manner in which the death of the victims claimed to have been taken place.

As observed hereinabove, though the PW 13 deposed in course of his cross-examination that the FIR, seizure lists and other documents were forwarded to the Court of learned Sub-Divisional Judicial Magistrate, Berhampore through a special messenger, there was no explanation for sending the same at an inordinate delay of six (6) days at the cost of repetition let it be recorded that we find from the endorsement made in the FIR we have no doubt that the same was received in the aforesaid Court below on June 26, 1998.

Besides, there were contradictions with regard to preparation and place of receiving the written complaint which was the basis of drawing the formal FIR. According to PW 1, the written complaint was prepared at his residence in presence of PW 2, PW 5, PW 6 and PW 11. According to PW 2, the above written complaint was prepared by PW 1 and it was handed over to the police officer concern at the place of occurrence. The place of preparation of the written complaint was not available from the evidence of PW 5 and PW

6. According to the evidence of PW 11, probably the written complaint was prepared sitting in their village. Other prosecution witnesses namely PW 3 and PW 8 deposed in course of cross-examination that PW 1 prepared the written complaint at the police station. Therefore, the above facts and circumstances provided a legitimate basis of suspecting that the FIR was not recorded on the stated date and hour.

Regarding the next contention of the appellant relating to the doubt with regard to the place of occurrence, according to the FIR, the place of occurrence was near the house of appellant Jahiruddin Molla situated in village-Dilalpur, Police Station-Hariharpara, District-Murshidabad where the aforesaid appellant hurled bomb aiming at the deceased persons at the material point of time when they had reached the place of occurrence. As a result, both the deceased persons fell down from their cycles. Then the other appellants assaulted them. The victims succumbed to his injuries. According to the inquest report, the dead body of deceased Md. Abdulla Mondal was laying behind the house of Moktar Sk. situated at Village- Dilalpur, District-Murshidabad and that of the dead body of the deceased Islam Mondal lying on the village road in front of the house of Maola Baks of Village-Dilalpur, District-Murshidabad.

According to the rough sketch map, the dead body of deceased Md. Abdulla Mondal was found beside the vacant land of Moktar Sk. situated at Village-Dilalpur, District-Murshidabad and that of the deceased Islam Mondal was lying on the road in front of the house of Maola Baks in the same village.

According to the charge framed against the appellants, the place of occurrence was near the Khal of Durlavpur village, Police Station- Hariharpara, District-Murshidabad.

According to the ocular evidence of PW 2, PW 3, PW 4, PW 5 and PW 11, the place of occurrence was near the residence of appellant Jahiruddin Molla lying and situated in the aforesaid Village-Dilalpur.

According to PW 1, he had heard a sound of blasting a bomb from the side of the aforesaid Village-Dilalpur from Village-Choa. Similarly, PW 8 heard a sound of bomb blast from the aforesaid Dilalpur village side from Village-Choa. But there was no seizure of remanents of bomb from the place of occurrence.

But upon scrutiny of the arrest memo as also bail bond of the aforesaid accused Jahiruddin Molla from the lower Court records, we find that the residence of the aforesaid accused person was situated at Village- Durlavpur, Police Station-Nowda, District-Murshidabad.

According to the settled proposition of law, as decided by the Hon’ble Supreme Court in

# Syed Ibahim Vs. State of Andhra Pradesh, reported in JT 2006 (6) SC 597

that it would not be proper to accept the prosecution case when the place of occurrence itself has not been established.

Therefore, the place of occurrence was not proved beyond all reasonable doubts in the instant case and as a result, we have no hesitation to arrive at a conclusion that there was infirmity in decision making process of the learned Trial Judge. Once it is held that the place of occurrence has not been established beyond all reasonable doubts, then the other circumstances are hardly sufficient to establish the guilt of the accused.

In view of the facts and circumstances of the instant appeal, the decisions of Pedda Narayana (supra) or Gonchi Rajashekhar Reddy (supra) does not help the prosecution.

In view of the above, these appeals are, thus, allowed. The impugned judgment, order of conviction and sentences of the appellants are quashed and set aside. The appellants are directed to be set at liberty unless otherwise required in any other case.

Let this judgment together with the Lower Court’s records be sent back to the learned Court below expeditiously.

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

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