- (1.) This appeal has been preferred by three appellants Joleman Sk (A-1), Nekail Sheikh @ Nakail (A-2) and Kamal Sheikh (A-3) challenging the judgment and orders of conviction and sentence dated 5.9.2008 and 9.9.2008 respectively passed by learned Additional Sessions Judge, 2nd Fast Track Court Jangipur in Sessions Case No. 16 of 2005 corresponding to Sessions Trial NO. 2 (9) of 2005 under Sections 364 and 302 read with Section 34 of the Indian Penal Code (in short I.P.C.).
(2.) The appellants have contended that the evidence on record do not justify the conviction and sentence and that the impugned judgment and orders of conviction and sentence are bad in law causing prejudice to the appellants. Appellants have further contended that the appellants were not properly examined under Section 313 of the Code of Criminal Procedure (in short Cr.P.C.) and that the witnesses examined by prosecution are either relatives or known persons of the complainant which fact has not been considered by the Trial Court. Appellants have prayed for setting aside the impugned judgment and orders. Initially the case was started against six accused persons including the three appellants. Two accused persons Ayub Sk and Sajahan Sk absconded and their case was splitted up and kept pending. The case proceeded against four accused persons including the three appellants and one Sabirul Sk., who had faced the trial in the Trial Court. In the impugned judgment accused Sabirul Sk. has been acquitted of the charges under Sections 364/302/34 of the Indian Penal Code and the appellants have been convicted and sentenced of the said charges. The case of the State prosecution adjudicated in the Trial Court in substance is that on 7.2.2004 at about 5:00 p.m. the victim Sabdul Sk. Went to tea stall of Nurman Sk. for taking tea in their village Adwaitanagar when the six accused persons being armed with sharp cutting weapons sword, bhojali (dagger) and hansua and also with bombs attacked him. Sabdul rushed to a nearby tea stall of one Salim Sk, for taking shelter but accused persons chased and caught hold of him there. They dragged him from that tea stall and started assaulting him with sharp cutting weapons and took him away. The accused persons killed Sabdul and left his dead body in the field of green mustard plants of one Joinal Sk. Defence of the four contesting accused persons was denial of the occurrence and involvement of accused persons in the alleged crime with a further defence of alibi of accused appellants Juleman (A-1) and Nakail (A-2) with a plea that at the relevant time of alleged occurrence they attended a meeting at village Chanchki in Jharkhand in connection with divorce of Shafura Khatun daughter of Nuruddin Sheikh (DW 1) of village Chanchki and her husband Naborul Sheikh of village Adwaitanagar. During trial prosecution examined nineteen witnesses as PWs and accused persons examined three witnesses as DWs. Nineteen PWs are Hanif Sk. (PW 1), Belal Hossain (PW 2), Tajkera Khatron (PW 3), Aklema Bewa (PW 4), Ambia Bewa (PW 5), Sakir Sk. (pW 6), Soleman Sk. (PW 7), Md. Jiaul Haque (PW 8), Manirul Sk. (PW 9), Salim Sk. PW 10), Asgar Ali (PW 11), Anjarul Sk. (PW 12), Abdul Khaleque (PW 13), Md. Badruddoja (PW 14), Serajul Sk. (PW 15), Abdul Gaffar (PW 16), Dr. Subhendu Kumar Roy (PW 17), S.I. Surajit Sadhukhan (PW 18) and S.I. Prasanta Mukherjee (PW 19). Three witnesses of contesting accused persons are Nuruddin Sk. (DW 1), Noor Ali (DW 2), Jamilur Rahman (DW 3). Accused persons also adduced one talaqnama as exhibit- A. Prosecution adduced documentary and material evidence also and marked exhibits. Exhibited documents of prosecution are carbon copy of inquest report (exhibit- 1), a seizure list dated 8.2.2004 relating to seizure of blood stained earth etc. collected from the place of recovery of dead body of victim (exhibit- 2), another seizure list dated 8.2.2004 relating to seizure of blood stained wearing apparels and blood of victim (Exhibit- 3/A), another seizure list dated 25.8.2004 relating to seizure of 60 tiles from the house of accused Nekail Sk. on the strength of warrant of proclamation and attachment (exhibit- 4/A), carbon copy of another seizure list dated 7.11.2004 relating to seizure of two swords, one dagger and two hansua from a bush behind Islampur Primary School (exhibit- 5/B), written compliant dated 8.2.2004 lodged by PW 1 at Samshergunj Police Station through PW 19 (exhibit- 6), formal FIR (exhibit- 7), carbon copy of post mortem report (exhibit- 8), relevant portion of statement of accused Kamal Sk. recorded by PW 18 leading to discovery of incriminating weapons (exhibit- 9), rough sketch map of the place of occurrence (exhibit- 10) and index of exhibit- 10 (exhibit- 10 A). Material exhibits of prosecution are two swords collectively (Mat. exhibit- 1), one dagger (Bhojali) (Mat, Exhibit- 2), one 'hansua' (Mat. exhibit- 3) and one old white colour blood stained full sleeve shirt and a half sleeve vest and a green check lungi collectively (Mat. exhibit- 4). Some unchallenged facts of the case are homicidal death of Sabdul Sk. on 7.2.2004, before about two years of Saddul's death his son Zakir was also murdered for which Sabdul complained at Police Station and during trial in that case Sabdul deposed in Court on the day before the date of his death and subsequaently in that case accused Kalu Sk. Torab Ali and Abu Taleb have been acquitted of their charge. A-1 Joleman is cousin of said Kalu Sk. and Abu Taleb and said Torab Ali are nephew of A- 1 Joleman. Determining question is whether the Trial Court has rightly found guilty the three appellants as authors of abduction and murder of Sabdul Sk. At the time of hearing of this appeal Mr. Sandipan Ganguly learned Advocate for the appellants has advanced arguments that according to prosecution case the victim was abducted in the day time from a village market area having so many shops and establishments and he was assaulted with sharp cutting weapons on the way of taking him away but not even a single independent eyewitness has been examined by prosecution against the appellants and since the examined alleged eye-witnesses are interested and closely related to the victim they should not be relied upon as proof of prosecution case.
(3.) He has pointed out that there are discrepancies in the depositions of material witnesses of the prosecution. He has claimed that alibi of A- 1 and A- 2 has been successfully proved by DW 1, DW 2 and DW 3 and also corroborated by PW 9 and PW 10. In support of his arguments Mr. Ganguly has relied upon the decisions of Supreme Court in the cases of Kapildeo Mandal and Ors. Vs. State of Bihar,2008 1 ECrN 28 , Jagga Singh and Anr. Vs. State of Punjab, 2011 1 SCC(Cri) 845 , Jumni and Ors. Vs. State of Haryana, 2014 3 SCC(Cri) 380 , Iswar Singh Vs. The State of Uttar Pradesh and Ilam Singh and Ors Vs. The State of Uttar Pradesh, 1976 AIR(SC) 2423 . On the other hand, Mr. Subir Banerjee, learned Advocate for the State respondent has argued that prosecution has proved its case examining six PWs ( PW 1 to PW 6) as eye-witnesses of the occurrence. Their evidence against the appellants is corroborative each other. According to him said witnesses have been crossexamined at length but they stood with credibility. He has submitted that minor discrepancies in their evidence is to be ignored. He has advanced his arguments that said witnesses have also proved the mens rea of the appellants submitting that the victim of this case deposed in the case of murder of his son Zakir on the preceding date of his death without paying heed to the threat of the appellants to him with dire consequence in case of his giving evidence against accused persons in that case. He has replied to the arguments of appellant's side submitting that the evidence of DWs is not corroborative each other and they have not stated about presence of PW 9 and PW 15 in the alleged meeting of divorce at village Chanchki at Pakur of Jharkhand although during cross-examination PW 9 and PW 15 made extraneous statement to support the defence version of alibi. He has also drawn our attention to the distance between Chanchki and Adwaitanagar as 7 km. only claiming the alibi as false outright. He has also claimed that ocular evidence and medical evidence adduced by prosecution has sufficiently proved the prosecution case. His further arguments is that the evidence of relative witnesses cannot be discarded only because they are relatives of victim submitting that the relatives and well wishers of victim will not screen the real culprits and will not implicate innocent persons in a crime like murder. He has cited the decisions in the cases of Gurucharan Singh and Anr. Vs. State of Punjab, 1956 AIR(SC) 460 , Guli Chand and Ors Vs. State of Rajasthan, 1974 3 SCC 698 , Maqbool Alias Zubir alias Shahnwaz and Anr. Vs. State of Andhra Pradesh, 2011 AIR(SC) 184 , Gangabhavani Vs. Rajapati Venkat Reddy and Ors., 2013 AIR(SC) 3681 and Rokad Singh and Ors. Vs. State of Madhya Pradesh, 1994 CrLJ 494 .;