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