JUDGMENT
P.K. Biswas, J.
1. This criminal appeal is directed against the judgment and order dated September 4, 1991 passed by Sri J. Banerjee, Additional Sessions Judge, 4th Court, Murshidabad in connection with Sessions Trial No. 4 of June 1991 corresponding to Sessions Serial No. 109 of 1986. All the appellants were convicted under Section 302 read with Section 34 of IPC as also under Section 324 read with Section 34 of IPC and they were sentenced to suffer imprisonment for life and a fine of Rs. 2000/- each in default to suffer rigorous imprisonment for a further period of six months each for the offence under Section 302 of IPC read with Section 34 of IPC and were also sentenced to suffer rigorous imprisonment for two years each for the offence under Section 324 of IPC read with Section 34 of IPC. Orders were also passed that substantive sentence of imprisonments are to run concurrently.
2. Shorn of unnecessary details prosecution case may be narrated as under :-
One Khabiruddin, son of Jesharat of Bablabona P.S. came to the P.S., at about 21.15 hrs. on 10.6.84 and reported to S.I., Sri Ashok Kumar Basu, Officer-in-Charge, Raninagar P.S., that on that date at about 5.45 P.M.. Shantu, Wajed, Maniruddin, Imran, Akali and Maijuddin all of Bablabona, P.S., Raninagar came before the house of his brother Samsuddin and his son, Obaiddul Islam and started hurling filthy languages towards them. At that time, Jhantu and Wajed told Samsuddin (“Hey Shala”, come out, we shall finish you off.)
3. Hearing such shouts, Samsuddin and Obaiddul came out of their house and then Maniruddin and Wajed at once held Samsuddin while Jhantu pulled Obaiddul down in the ‘Palanga’ after catching him. At that time, Wajed had a ‘Fala’ in his hand, while Maniruddin had ‘Pashill’ in his hand, Jhantu held a sword and Imran a ‘Fal’ in their hands. Akali and Maijuddin were also armed with ‘Pashili’. Then all of them started assaulting Samsuddin and Obaidul with their respective weapons in their hands. As a result, Samsuddin and Obaidul sustained various injuries on their persons. Kalu Sk. came to resist Jhantu and then Wajed assaulted Kalu on his arm with his Tala’.
4. After having assaulted Samsuddin and Obaidul and inflicting injuries on their persons, Jhantu spoke out, “Shalas have not died yet”, and saying this Jhantu dealt Samsuddin on his left leg with a blow by the ‘Pashili’. Jhantu thereafter, practically started separating the two parts of the body of Samsuddin by catching one leg and pressing another leg.
5. Thereafter, having left Samsuddin and Obaidul at that place Jhantu, Wajed. Maniruddin, Akali, Imran and Maijuddin went away. Wajed in course of the incident received a stroke on his finger from Maniruddin’s ‘Pashili’.
6. Khabiruddin and other people of the village took Samsuddin and Obaidul in bleeding condition to Raninagar Hospital and at the hospital doctor declared Samsuddin to be dead and medical treatment was given to Obaidul.
7. It was also reported by Khalimuddin that some time before the incident, Bhatu, the goat-herd of Jhantu was grazing goats in Samsuddin’s field, and over this issue there has been some altercation and. at this
Samsuddin had slapped Bhatu and on receipt of such slapping, Bhatu had gone away and complained to Jhantu. At this Jhantu with his son and being accompanied by the above-named accused persons attacked Samsuddln and his son. Since long Jhantu had also enmity with Samsuddln and Jhantu used to disclose often that he will finish off Samsuddln surely some day or other.
8. The facts being narrated before the Officer-in-Charge, Raninagar P.S., the same was recorded by S.J., Ashok Kumar Basu, O.C., Raninagar P.S., and after the recording was complete, the same was read over and explained to the complainant, Khabiruddin and he admitted it to be correctly written and thereafter put his signature on the same. On the basis of aforesaid complaint, Officer-in-Charge, Raninagar P.S., started this case and he took up the investigation by himself.
9. PW 11, Sri Ashok Kumar Basu after taking up investigation, visited the P.O., held inquest over the dead body of the deceased in front of Raninagar PHC., examined the witnesses and recorded their statements under Section 161 Cr.PC, prepared a sketch map of the P.O. with index. Thereafter, he sent the dead body to the M.O., Lalbagh S.D. Hospital through a constable for P.M. examination after holding the inquest and subsequently on completion of investigation, he submitted charge-sheet against all the accused persons under Sections 147/148/149/307/323/ 324/304 of IPC.
10. The case was committed to the Court of the Sessions Judge, Murshidabad, who eventually transferred the same to the Court of Additional Sessions Judge, 4th Court, Murshidabad for trial.
11. In course of trial, charge under Section 302 read with Section 149;326 read with Section 149 of the Indian Penal Code were framed against the accused persons and the charge was read over and explained to the accused persons who in turn pleaded not guilty and claimed to be tried.
12. The prosecution, in order to bring home the charge against the accused persons, has examined as many as 12 witnesses and out of them six witnesses (PW1 to PW6) are claimed to be eye-witnesses and PW10, Dr. Shyamal Das was the autopsy surgeon and PW 12, Dr. S.K. Biswas was then attached to Godhanpara PHC under P.S. Raninagar who examined victim Obaidul Islam and PW11 Ashok Kr. Basu was the then Officer-in-Charge, Raninagar P.S. and I.O. of this case.
13. The defence however, did not examine any single witness in support of their defence.
14. The trial Court, after recording the evidence of aforesaid witnesses, examined the accused persons under Section 313 of Cr.PC and upon hearing the argument of both the sides, has passed the impugned judgment convicting the six accused/appellants under Section 302 read with Section 34 of IPC and sentencing all the six accused/appellants to suffer R.I. for life and also to pay a fine of Rs. 2000/- each i.e., R.I. for a further period. of six months each for the offence under Section 302 read with Section 34 of IPC and also convicting the aforesaid accused appellants under Section 324 of IPC read with Section 34 of IPC and sentencing them to suffer R.I. for two years each for the offence under Section 324 read with Section 34
and at the same time ordered that the substantive sentence of imprisonment will run concurrently.
15. Being aggrieved by the finding of guilt recorded against the convict/ appellants, named above, and the sentences awarded, the present criminal appeal has been preferred by the aforesaid convict appellants.
16. Sri Ashim Kr. Roy, learned advocate appearing for the convict/ appellants contended before us that the prosecution case suffers from serious infirmities and he has assailed the judgment mainly on the following grounds:-
17. That the evidence of the claimed eye-witnesses is not at all reliable; that place of occurrence has been changed; that there has been delay in lodging the FIR although earlier, before lodging this FIR, the victim party had been to the P.S., and that no explanation has been offered with regard to the injury sustained by one of the convict/appellants namely Wajed.
18. The claim of the prosecution, however, has strongly been refuted by the learned counsel appearing for the. State/respondent alleging that it may be that there are some minor infirmities and omissions here and there but they do not, in any event, affect the merit of the prosecution case as a whole and in this particular case the cumulative effect of the evidence, as adduced by the number of eye-witnesses, would clearly and unmistakably suggest that the present convict/appellants committed murder of the victim by a conjoint effort.
19. In connection with this appeal, we have heard the learned counsel, Sri Ashim Kr. Roy appearing for the accused/appellants and also Mr. R.N. Chakraborty, learned counsel appearing for the State/respondent at length and both of them have taken us through the evidence of all the prosecution witnesses, so also through the impugned Judgment and order of the Additional Sessions Judge, 4th Court. Murshidabad.
20. Mr. Ashim Kr. Roy, learned advocate appearing for the appellants strongly advanced his arguments contending inter alia, that the prosecution, in this case, has placed their reliance mainly on the evidences of PW1 (Khabiruddin Sk.), PW2 (Obaidul Islam), PW3 (Md. Saidullah Sarkar). PW4 (Majera Bewa), PW5 (Abdul Odud) and PW 6 (Kulu Sk.) apart from the medical evidence adduced in this case by examining the doctor and the learned trial judge in course of his judgment has also placed his utmost reliance on the evidences of PW1, PW2. PW3, PW4 and PW5 in arriving at a decision regarding the finding of guilt of the present convict-appellants. It has also been contended by Mr. Roy that the learned trial Judge on the evidence and materials, available before him, was riot at all justified in placing reliance on the evidence of PW3 (Md. Saidullah Sarkar) and PW 5 (Abdul Odud) inasmuch as although these two witnesses in their evidence have claimed themselves before the trial Court to be the eye-witnesses of the incident in question and said that incident in question took place before the house of the victim Samsuddln on the fateful day, yet, from the evidence of the I.O. as PW11, Sri Ashok Kr. Basu it would be quite clear that PW3 [Md. Saidullah Sarkar) stated before the I.O. that heard all about the incident from Obaidul Islam (PW2) and PW5 (Abdul Odud) did not state before the I.O. (PW11) that he saw the incident with his own eyes and as
such, in any event, no reliance can be placed on the evidences of PW3 and PW5 that they are the eye-witnesses of the incident which allegedly took place in front of the house of the victim, Samsuddln.
21. The learned advocate appearing for the State/respondent in course of his argument has conceded before us that even if the evidence of PW3 IMd. Saidullah Sarkar) and PW5 (Abdul Odud) are discarded as being not the evidence’ of eye-witnesses in the instant case, yet, the evidence adduced by the other witnesses are sufficient enough to warrant conviction against the convict/appellants and the learned trial Court has rightly disbelieved the portion of the evidence of those two witnesses and thereafter placed his reliance on the evidence of PW1 (Khabiruddin Sk.), PW2 (Obaidul Islam) and PW4 (Majera Bewa) who in course of their evidence have proved the incident in question satisfactorily. Going through the evidence of the aforesaid three witnesses with meticulous care, we also do not find any reason to discard the evidence of these three witnesses in coming to the conclusion with regard to the present matter inasmuch as it has come out from the evidence of PW1 (Khabiruddin Sk.) that the assault was inflicted upon the victim by the individual accused persons and this witness has successfully stood the test of cross-examination. Although some minor discrepancy is there in his evidence, yet, according to us that was not at all fatal for the prosecution case and the aforesaid evidence of PW1 (Khabiruddln Sk.) has been amply corroborated by PW2 (Obaidul Islum), another victim of assault.
22. Drawing our attention to the evidence of PW4, Majera Bewa where this witness has admitted that she has heard that there was a quarrel in the jute field prior to the incident and next to the above evidence where this witness has stated that it is a fact that at that time Samsuddin was murdered and her son sustained serious injuries’, it was strongly argued on behalf of the appellants that the evidence of this witness clearly suggests that the place of occurrence, as alleged by the prosecution to be near the house of victim, Samsuddln has not been established. Rather it has been proved that the incident in question took place in the jute field where on the day of the incident, some altercations had taken place and assaults were made and as a result of which Samsuddln died, but, we are unable to accept the aforesaid contention of the learned counsel appearing for the convict/ appellants for the reasons that going through the evidence of this witness as a whole, we find that nowhere in the evidence, excepting the above solitary statement, she has stated that the incident in question took place in the jute field, rather she was very much categorical in saying in her evidence that all the six convict/appellants came to their courtyard and called her son and husband and as they came out of the house, the incident of assault begun and as a result of which, her husband died and her son sustained injuries for which he was treated. In the backdrop of the above evidence. It is not at all cogent and proper to place any reliance on the solitary statement elicited during cross-examination from a rustic lady like PW4 (Majera Bewa) and as such being in agreement with the views, expressed by the learned counsel appearing for the State, we also hold that PW4 instead of supporting the defence version of this case supports the prosecution version of the case.
23. To substantiate the claim of the defence that the P.O. is the Jute field and not before the house of victim, Samsuddln as claimed by the prosecution, Sri Roy, learned counsel appearing for the convict/appellants has placed his reliance on the statement recorded under Section 313 Cr.PC made by one of the accused persons namely Wajed All specially to answer No, 8 given by this accused in course of his examination. But had it been a fact, as claimed by Sri Roy, in such event PW2 (Obaidul Islam) who himself was one of the victims of the assault and PW1 (Khabiruddin Sk.) and PW4 {Majera Bewa) would not have come out with a different story naming the present assailants responsible for the death of Samsuddin by screening the actual offenders, as alleged by the defence. No specific suggestion in this regard has also been put to PW1 and PW2 in course of their cross-examination that in fact such incident of assault upon the victim Samsuddin and Obaidul took place in the jute field and not in front of the house of Samsuddin. In view of the above, assessing the totality of the evidence adduced on behalf of the prosecution through the aforesaid witnesses, we also find no reason to hold that the incident as alleged took place in the Jute field, rather evidence available on record, is clear and sufficient enough to clearly establish that the incident of assault took place in front of the house of Samsuddin.
24. So, we are unable to place any reliance on the claim of the defence that the P.O. has been changed.
25. Referring to the evidence adduced by the prosecution that on the fateful day before taking the victims of assault to the hospital, the victim party had been to the P.S., and from P.S., they went to the hospital, where Samsuddin was declared dead by the doctor and Obaidul Islam received certain medical treatment and over this issue, severe criticism has been made from the side of the appellants regarding the delay in lodging the FIR of this case. But occurrence in this case, as per the FIR, took place at about 5.45 P.MI, and the FIR was lodged at the P.S., at about 9.15 P.M., within 4 hours almost. It has, however, been claimed by the defence that this unexplained delay would cast a doubt regarding genuineness of the prosecution case.
26. Learned counsel, appearing for the State, however, in course of refuting the claim of the defence has advanced his argument by saying that even if it is assumed or accepted the victim party had been to the P.S., earlier on the date of the incident before, going to the hospital, yet, at that point of time, their first and foremost concern were for the medical treatment of the victims for saving their lives and in this particular case, the FIR was lodged at the P.S., even within less than four hours, so, nothing adverse could be inferred in favour of the defence for such alleged delay.
27. We find much force in this argument and in fact we hold that there was no undesirable and unexplained delay which may lead to the conclusion that there has been any scope for embellishment in the FIR to give any benefit to the defence in connection with this case.
28. Much comments have been made by the learned counsel appearing for the convict/appellants over the issue that the prosecution in the instant case has failed to offer any explanation for the injury sustained by Wajed All, one of the convict/appellants in this case.
29. As per the settled provisions of law. there is a requirement or obligation on the part of the prosecution to explain the serious injuries which are found on the person of the accused, as a principle of appreciation of the evidence for satisfying the conscience of the Court as to the circumstances under which the occurrence originated. But the bulk of the evidence adduced on behalf of the prosecution fn proving the incident of assault on the victim is that on being called by the accused appellants, Samsuddin and Obaidul came out of their house and as soon as they came out, both of them were pushed down and all the accused persons started causing assault on them with their respective weapons in their hand and as pointed out earlier that there was also no suggestion from the defence that at that point of time both Samsuddln and Obaidul were also armed with weapons. In the evidence, recorded in this case, there is nothing also to indicate that actually on that day, at the spot, meaning thereby near the house of Samsuddin, there was a mutual fight or any incident of that kind had taken place where such an injury might have been probable. So, assessing the entire materials, available in the record, we are left with no option than to hold that it cannot be said that Wajed All, one of the convict/appellants sustained injuries in his person in course of the same incident which took the life of the victim Samsuddin. That being the position of the evidence on record, we are unable to place any importance on the argument advanced on behalf of the defence.
30. Another argument has been advanced from the side of the defence regarding non-examination of the neighbouring witnesses fn the evidence that the house of the victim and his brother is situated in a densely populated place, but as per the settled position of law, mere absence of some likely witnesses may not always be looked upon with suspicion as the Court is only required to place its credence on the quality of the evidence alone and not on the quantity. In this particular case also, the mere non-examination of the likely witnesses as claimed by the defence will not be at all fatal for the prosecution as they have already established through the evidences of PW1, PW2 and PW4 supported by the medical evidence through the doctors that the incident of assault took place near the house of Samsuddin and on receiving the assault from the conjoint efforts of the accused persons Samsudding sustained serious injuries and eventually succumbed to such injuries and Obafdul sustained some injuries for which he was treated subsequently. The defence also tried to establish that the ocular evidence of this case does not support ‘the injuries sustained by the victim of assault. It has come out in the evidence that the accused persons encircled the victims and they launched the assault while standing and they used weapons in a particular fashion, but after a lapse of so many years, it cannot be expected that all the witnesses examined on behalf of the prosecution would come up with a consistent story as if they have been possessing a photographic memory and for that they should recall every minor details of the incident. May be that there are few omissions here and there in the evidence of above witnesses, but in this particular case they are so insignificant that no importance can be attached to them and as such we find no cogent reason for discarding the above evidence.
31. Now, having gone through the entire evidence recorded by the trial judge and reading the judgment and order of the trial Court as a whole.
we find that the learned trial Court has correctly appreciated the evidence on record and has come to a proper finding in convicting and sentencing the convict appellants under Section 302 read with Section 34 of IPC as also under Section 324 read with Section 34 IPC, we also find that the Judgment of the trial Court is a well written Judgment and as such the impugned judgment requires no interference whatsoever from this Court.
Thus, after hearing both sides and after going through the available materials on record, we are of the clear view that there is no merit fn this appeal.
The appeal, therefore, falls accordingly. The conviction and the sentence imposed upon the accused/appellants will have to be upheld therefor. As a result. the instant appeal is dismissed.
S. Barman Roy, J.
32. I agree.
33. Appeal dismissed