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

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