Decided on September 20,2012

Ahmad Hussein Two and Ors. Appellant


Barin Ghosh, J. - (1.) LEARNED counsel Mr. S.K. Mandal submitted that, though he was engaged by the appellants to argue the case on their behalf, but after the matter started appearing in the list for hearing, he tried his best to contact the appellants, but could not establish such contact. In the circumstances, he has submitted that it may not be appropriate on his part to appear in the appeal. Having regard to the fact that Mr. S.K. Mandal, Advocate, has prepared himself to argue the case on behalf of the appellants and, at the same time, at one stage, appellants had reposed confidence in him for arguing the case on their behalf, we felt that it would be appropriate to engage Mr. S.K. Mandal as Amicus Curiae in the matter. We, accordingly, do so. Anwar (PW1) lodged the First Information Report at 03:30 p.m. of 30th March, 1995, where he stated that, after selling milk, he was returning when his brother Afsar was on his bicycle travelling towards him, but, near the tube -well of Maula Baksh, accused people, namely, Ahmad, Mohammad and Salim, surrounded him. It was also alleged that appellant Ahmad was armed with a country made pistol, appellant Mohammad was armed with a knife and appellant Salim was armed with a country made pistol. It was alleged that appellant Ahmad fired on Afsar, appellant Salim also fired on Afsar and appellant Mohammad assaulted Afsar with knife. It was stated that this incident was witnessed by Rais (PW2). On the basis of this First Information Report, investigation commenced, in course whereof, inquest was made. In the inquest report, it was stated that the dead body of Afsar is lying on his back. After the inquest, the dead body of the victim was sent for post mortem. The doctor, who conducted post mortem of the dead body of the victim, reported that the deceased died of ante mortem injuries suffered by him. It was held out that the victim suffered 14 injuries, of which, 12 were incised wounds and remaining two firearm injuries. One Firearm injury was on the front side of the face and the other firearm injury was on the back of the chest. From the back of the chest, 52 pellets were recovered and, from inside the brain, two pellets were recovered. According to the post mortem report, those two pellets entered the brain through the inlet caused by the first injury. In course of investigation, one empty 12 bore shell was recovered. After appellants Mohammad and Salim were arrested, on their pointing, a knife and a country made pistol were also recovered. The recovered knife was sent for chemical examination. The Examiner reported that the same contained human blood, but the blood group could not be decided. The empty shell and the country made pistol were also sent for examination by the ballistic expert. The ballistic expert reported that the country made pistol was used to fire the said shell on the basis that the mark of the chamber of the country made pistol has been left on the outer part of the shell. The investigation was, accordingly, concluded. A charge -sheet was submitted alleging that the appellants are guilty of commission of offence punishable under Section 302, read with Section 34, of the Indian Penal Code. In view of recovery of knife and the country made pistol at the pointing of appellants Mohammad and Salim, a separate charge -sheet was also filed, whereby appellant Mohammad was charged for offence punishable under Section 4/25 of the Arms Act and appellant Salim was charged for commission of offence punishable under Section 25 of the Arms Act.
(2.) THE prosecution led principal evidence through PW1 and PW2. After considering the prosecution evidence and the answers given by the appellants to questions put under Section 313 of the Code of Criminal Procedure, the court below has convicted all the appellants under Section 302 of the Indian Penal Code and also convicted appellant Mohammad under Section 4/25 of the Arms Act and appellant Salim under Section 25 of the Arms Act. In the present appeal, it is the contention of the appellants that the court below erred in accepting the evidence of PW1 and PW2. It is the contention of the learned Amicus Curiae that the prosecution did not make any effort to establish the raison d' etre for the crime in question and, accordingly, if the evidence of PW1 and PW2 is not acceptable, then conviction of the appellants under Section 302 of the Indian Penal Code is interferable.
(3.) INSOFAR as the motive/raison d' etre is concerned, the only evidence tendered by the prosecution was through PW1. PW1 held out that the land belonging to him and the land belonging to appellant Mohammad were divided by a divider. It was stated by PW1 that appellant Mohammad often used to breach that divider. He also asserted that, in relation to such breaching, he used to quarrel with appellant Mohammad. PW1, however, did not hold out that the land, which was divided by the divider and was adjacent to the land of appellant Mohammad, also belonged to deceased Afsar. At the same time, PW1 held out that, prior to the incident, PW1 had no fight with any of the appellants. He also stated that the appellants used to come to his house. He made it clear that, in regard to breach of the divider, no complaint was lodged by him with any quarter. Therefore, there may be some apathy on the part of PW1 in relation to action of appellant Mohammad, pertaining to the divider, but he did not spell out, in course of his evidence, any ingredient to show that any of the appellants may have any motive or reason to cause such harm to the deceased, as was inflicted upon him and depicted in the post mortem report. The fact remains, and which is not in dispute, that the victim received 12 incised wounds and two gunshot injuries. The gunshot injuries as well as incised wounds were fatal in nature. The post mortem report depicts that, even after firing in the manner as depicted in the post mortem report, 12 incised wounds were inflicted and, if the same were inflicted by one person, as was alleged by PW1, appellant Mohammad, while inflicting such wounds, became absolutely mad by a rage against the victim. The reason for such rage of appellant Mohammad against the victim has not been spelt out.;

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