Girish Chandra Gupta J. - (1.) THIS appeal is directed against a judgement dated 17th September, 2008 passed by the learned Additional Sessions Judge, Fast Track 1st Court, Lalbagh, Murshidabad, in Sessions Case Serial No. 228 of 2003 connected with Sessions Trial No. 7th February, 2008 arising out of G.R. Case No. 841 of 1998 corresponding to Raninagar P.S. Case No. 92 of 1998 dated 22 November, 1998 by which the learned trial Court found the appellants Dilip and Dinesh guilty of the offences punishable under Section 302, 326 and read with Section 34 of the Indian Penal Code. Accused Arjun Mondal was acquitted of all the charges. By an order dated 18th September, 2008 the learned trial Court sentenced the convicts to imprisonment for life as also to pay fine of a sum of Rs. 2,000/ - each in default to suffer simple imprisonment for one year each for the offence punishable under Section 302/34 of the Indian Penal Code. The convicts were also sentenced to suffer simple imprisonment for three year as also to pay fine of a sum of Rs.1,000/ -each in default of payment to suffer further simple imprisonment for a period of one year each for the offence punishable under Section 326/34 of the Indian Penal Code.
(2.) THE case of the prosecution is as follows: - On 22nd November 1998 Nripen and his son Nikhil in the morning at about 10 am were going towards their field with a bullock cart for the purpose of bringing the bundles of the harvested paddy. In order to reach the field they had to cross the border of the field belonging to the accused persons. No sooner the cart of Nripen and Nikhil touched the border of the field belonging to the accused than an exception was taken by the four accused persons namely Dilip, Dinesh, Arjun and Bipod; an altercation ensued and thereafter wounds were inflicted by weapons like haso, dau, Lathi etc.. Fatik and his sons working in the field of Nripen ran to rescue them. In the process the two sons of Fatik were also injured. All the four injured persons were removed to local Godhonpara public health Centre. Santosh son of Fatik and Nripen brother of Fatik were referred from the Public Health Center to the Baharampore hospital while Ranjit and Nikhil were discharged after first aid. Fatik lodged a written complaint at about 15.35 hrs.. which was scribed by the pradhan of the village ( P.W.1). Nripen died on the way to the Baharampore hospital. The prosecution has examined Santosh (P.W.12), Nikhil (P.W.10) and Ranjit (P.W.11) who were injured in the transaction. Besides them Mastoram (P.W.8) and Kamal (P.W.13) being the laborers working in the field of the victim at that time were also examined. P.W.13 however turned hostile. The other witnesses are the neighbors. They are Imtazul Hq (P.w.4),Karuna Krishna Sarkar (P.W.5),Anil Kumar Mondal (( P.W.6), Uttam Kumar Sarkar ( P.W.7) and Banamali Mondal (P.W.9). Fatik (P.W.3) is the de facto complainant aged about 72 years and by that arithmetic must have been about 62 years old on the date of the incident. Another neighbor Abdul Kayam (P.W.2)was also examined who turned hostile. P.W.14 is the autopsy surgeon, P.W.15 and P.W.16 are the official witnesses including the I.O.. The I.O it appears recovered a blood stained Dau from the stack of straw from the house of the accused Dilip on the date of the incident itself during the investigation. Mr. Ali, learned Senior Advocate appearing for the appellant advanced the following submissions: - (I) P.W.3 the complainant did not know the contents of the complaint. In support of his submission he drew our attention to the written complaint which does not contain any endorsement that the contents thereof were read over and explained to the complainant. The scribe (P.w.1) deposed that he read over and explained the contents of the complaint drafted by him to the P.W.3. Mr. Ali contended that from the following evidence of P.w.3 it would appear that the complainant was expressing surprise that such a complaint had been written "subsequently I attended P.S. with Pradhan for lodging of complaint. 'Ami pradhan ke bollam pradhan amon ki kora likhlo,janina'. This is my signature. (ii) From the inquest report marked ext 4 it would appear that there was no injury in the abdomen whereas from the evidence of the autopsy surgeon (P.w.14) it would appear that there was in fact of an injury in the abdomen. He, therefore, contended that the prosecution was not sure of its own case nor are the pieces of evidence adduced in the case compatible with each other. (iii) Assailing the sketch map marked ext. 9. Mr. Ali contended that in the sketch map three fields have been shown. Fields marked "A and C" belong to the deceased Nripen and the field marked "B" belongs to the appellant Dilip. But there was no indication in the sketch map as regards the other contiguous fields nor in there any indication as regards existence of any pathway in or around the fields marked A,B and C. (iv) The written complaint does not disclose that the injured persons were first taken to the police station and thereafter to the Godhonpara Public Health Center which appears to have been done from the evidence of the complainant and the other witnesses. (v) Assailing the evidence of the witnesses Mr. Ali contended that P.w.4 was not examined under Section 161 Cr.P.C. therefore his deposition has little or no evidentiary value. With regard to the deposition of P.W.5 he submitted that this witness claimed to have seen the incident from the garden in his house, whereas P.W.6 deposed that the house of the P.W.5 is surrounded by other houses. Mr. Ali as such contended that it was not possible for the P.W.5 to have seen anything. With respect to the deposition of P.W.7, Mr. Ali contended that the evidence of this witness was materially contradicted by the P.W.16 (I.O.). Therefore, the narration given by this witness has no evidentiary value. With respect to the deposition of P.Ws 8,9 and 10 Mr. Ali drew our attention to the contradiction obtained by defence during cross -examination of the I.O and on that basis he submitted that the evidence of the P.Ws 8,9 and 10 was also not believable. With respect to the deposition of P.W.11 he submitted that the evidence of this witness is that the local people had taken the injured to the Police Station whereas deposition of the P.w.3 is that he took them to the P.S. and hospital. This witness also introduced the presence of other witnesses, which he had not disclosed during his examination under Section 161 Cr.P.C as would appear from the evidence of P.W.16. With respect to the deposition of the P.W.12 Mr. Ali contended that although the witness claims to have been injured during the incident, there is clear admission to show that he had reached the place of occurrence after the incident. P.w.13 is a hostile witness and the P.W.14 is the autopsy surgeon. Mr. Ali contended that the autopsy surgeon found injury in the abdomen whereas in the inquest report there is clear indication that there is no injury in the abdomen. Mr. Ali further contended that the prosecution did not succeed in proving its case considering the conflicting pieces of evidence. (vi) Mr. Ali drew our attention to the following findings of the learned Trial Judge: I have read both chief and cross -examination together of each and every prosecution witnesses for correct appreciation to find out the truth. On due assessment of evidence of witnesses excepting a few omissions in the evidence of P.W.2,7,8,9,11 and 12 there are sufficient corroborated believable evidence in this trial. About omissions of those witnesses as pointed out from defence had been duly assessed by this Court and it appears that those are minor discrepancies and all those definitely will not go to shake root of prosecution case as a whole. I do admit that there are some minor variations in chief and cross -examination of some of the witnesses from prosecution side. But in true sense such variation does not affect the credibility of the witnesses. In this context I have perused 1981 Cr.L.J. (S.C.) 9 in the matter State of Maharastra Vs. Krishna Murthi. He contended that the learned Trial Court appears to have convicted the appellants on the basis of the evidence of the P.Ws 2,7,8,9,11 and 12 but there is no indication or at any rate there is no sufficient indication as to why was the evidence of these witness believable. In fine Mr. Ali contended that the evidence of these witnesses was not properly assessed by the learned Trial Court. (vii) Mr. Ali contended that the story of seizure and production of the offending weapon is fake and cannot be relied upon and this also demolishes the case of the prosecution that Nripen was assaulted with the weapon recovered from the house of the accused Dilip. Elaborating the submission he contended that the Heso (sharp weapon) which allegedly was recovered, contained blood stain and the same was also labeled by the I.O. But the Heso (sharp Weapon) produced in court was neither blood stained nor contained any label. He submitted that the theory of recovery of the offending weapon thus became weaker. From the fact that the I.O. deposed that he had sent the offending weapon and the blood stained earth to the Forensic Science Laboratory but the report was not received, he contended that if the report could not be received it is difficult to believe that the weapon sent for Forensic examination was received back from the Forensic Science Laboratory. He also questioned as to why was the report not insisted upon from the Forensic Science Laboratory. (viii) He sharply commented upon absence of any of the doctors who may have treated the injured persons either at the Godhonpara Public Health Center or at the Baharampore Hospital. (ix) He contended that the prosecution had failed to adduce any evidence with regard to motive behind the alleged crime. (x) He concluded by saying that the prosecution is bound to adduce unblemished evidence in respect of each of the links of its case and the failure on its part to do so would be fatal. He as such prayed for setting aside the judgment and the order under challenge.
(3.) MR . Sanyal, learned Additional Public Prosecutor appearing for the state submitted that the F.I.R was promptly lodged disclosing the names of the accused persons; the nature of injury and the cause of death. There is dependable evidence adduced by the autopsy surgeon and, therefore, omission to examine the S.I who had prepared the inquest report is not really material. According to him the witnesses examined by the prosecution are trustworthy. Some embellishments here and there and some omissions in the statement under Section 161 Cr.P.C made by the witnesses pointed out by Mr. Ali cannot destroy the case of the prosecution so long as the evidence of the witnesses is not wholly robbed of its credibility. He relied on a judgment in the case of Alamgir vs. State (NCT. Delhi) reported in 2003 SCC (Cri) 165 for the following proposition: - The circumstances noticed above, if read with the evidence of P.W.6 Shamima Bano as to the date of departure of the accused with his wife Hazra@ Halima from Bombay to Delhi and the telephonic message after two days that Halima had died in a bus accident and that she had been cremated at a cremation ground in Nizamudding ...... this piece of evidence, as noticed above, if read along with the circumstances noticed above, would form a chain without there being any snap. Strenuous submissions have been made as regards the admissibility of the handwriting expert's opinion as also a challenge thrown to the non -admissibility of the entire evidence of Shamima Bano, P.W.6. This evidence of Shamima Bano has been challenged on two counts: on the first, Shamima Bano, being the sister of Halima, was an interested witness and secondly, she did not say so in a statement before the police under Section 161 CrPC. Interested witness by itself cannot possibly be a ground to reject the evidence on record. The test of creditworthiness or acceptability, in our view, ought to be the guiding factor and if so, question of raising an eyebrow on the reliability of the witness being an interested witness would be futile - in the event the evidence is otherwise acceptable, there ought not to be any hindrance in the matter of the prosecutor's success. The evidence must inspire confidence and in the event of unshaken credibility, there is no justifiable reason to reject the same. It is on this score the issue of interested witness thus stands negated, as raised by the appellant. The second limb pertains to the statement under Section 161 CrPC. Admittedly, this piece of evidence was not available in the statement of the witness under Section 161 CrPC, but does it take away the nature and character of the evidence in the event there is some omission on the part of the police official? Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence -the answer, in our view, cannot but be in the negative. In that view of the matter, the evidence of PW 6 thus ought to be treated as creditworthy and acceptable and it is to be seen the effect of such an acceptability.;