JUDGMENT
Samir Kumar Mookherjee, J.
1. This criminal appeal is directed against the order of conviction and sentence passed by the learned Session Judge, Purulia in Session Trial No.20 of 1989 where the learned court convicted all the accused persons under Section 302 read with Section 149 of the IPC. They were also found guilty of the offences having been committed by them under Section 323 read with Section 149 of the IPC. They were sentenced to suffer life imprisonment, although no separate sentence was passed by the learned court under Section 320 read with Section 149 of the IPC.
2. The appellants, since affected by the decision of the learned court, have preferred the appeal for reversal of the order of conviction and sentence. In order to appreciate the contentions raised by the rival parties, it is worthwhile to give a brief resume of the facts though detailed by the learned court in his Judgment.
3. The factual exposure, as highlighted by the case of the prosecution, relates to chronic dispute amongst the brothers over the landed properties which, according to the prosecution, snapped off the life of Basiruddin Ansari and the injuries inflicted on his sons for the explosion of bombs. The accused Najimuddin and Basiruddin were born of the same womb, but for the disputes and dissensions since erupted amongst the brothers that forced them to live in separate mess. Basiruddin on the fateful day was sleeping with his wife PW-1 Taliban in the western side room of their house and for the sultry weather, they left the door ajhar. When the might was proceeding in a meteoric speed silently and when it was close upon 11-30, she woke up from her sleep for the alarm raised by her husband. Surprisingly enough, Afazuddin was found with a knife and Alauddin stood by his side. The situation, according to her, was aggravating.
4. Caught up with the crisis and in apprehension of danger to his life, she tried to save her husband in vain as she was pushed aside by Alauddin. Both the accused persons did not spare her husband, Afazuddin dealt a knife assault on her husband who was held by Alauddin. She recognized the assailants by the flash of the torches and the burning light of the lamp in the room. She also recognized other accused persons who were on the porch. They also flashed their torches.
5. Habib immediately poured in, as he responded to the alarm raised by her mother who could not escape the assault for the explosion of bombs. There were others namely Faruk, Ansari and Ohayeb Ansari who also received injuries for the infliction of bomb assault by some of the accused persons. There were much uproarings when many others of the village rushed in and the accused decamped. Taliban booked the neighbours with the occurrence and the assailants of her husband and relations. Jamaruddin Ansari intimated the Pradhan who in his turn intimated the father-in-law of her son PW-4 Nausad Ansari. He relayed the occurrence over phone to the O.C. of the P.S. which found its way in the G.D. being the G.D. No. 386 dated 14.8.86.
6. Mr. G.S. Shome, the Sub-Inspector of police alongwith force rushed to the spot, recorded the statement of Taliban and took charge of the dead body. He sent the FIR through the Constable No. 17 Subol to the PS for starting a case. Thereafter, he took up investigation of the case, recorded the statements of several witnesses, held inquest over the dead body to be the dead body of Basiruddin, seized the articles under seizure list duly attested by the witnesses, prepared the sketch map of the locale and, thereafter, he removed the injured to the hospital for the treatment.
7. PW-17 the autopsy surgeon conducted the post-mortem operation upon the body that was identified by PW-14 Anil in connection with Kashipur P.S. Case No.4 dated 14.10.85.
8. The investigating agency on completion of investigation submitted the charge-sheet before the learned SDJM who was duly satisfied that the case is exclusively triable by the court of Sessions, for which, he committed the case and the accused to the court of Sessions to stand the trial.
9. The learned court framed charges under Section 302 read with Sections 149 and Section 323 read with Section 149 of the IPC against the accused persons who pleaded not guilty to the charges and claimed to be tried.
10. The prosecution to found its case has examined as many as 17 witnesses and produced a number of documents to add weight to the case of the prosecution. The accused persons did not examine any witnesses. Their case is of bare innocence.
11. The learned court below, after due consideration of the evidence, found the accused persons guilty and passed an order of conviction and sentence hereinbefore indicated which is the core problem of the appeal. While criticising the order of conviction, the learned advocate for the appellants has formulated a few points in order to gain success in the appeal. Logically, the argument as advanced by him leads to the formulation of an issue that the appreciation of evidence has been wrongly bargained by the learned trial court as it is chiefly divorced from law which eats into the vital of the prosecution case. Such appreciation, according to the learned advocate, bites the law cake so much so where merit becomes relevant and it cannot take a back seat. The learned trial court resorted to a clean jacket formula in passing the order of conviction and sentence. His approach to the case is wrong.
12. Neither the oral testimony nor the documentory evidence paid any premium to the case of the prosecution which shakes the bottom of the prosecution case and the court in its turn built a super-structure on the case of the prosecution. The evidence is contradictory to each other and no credence could be placed on the evidence of any of the witnesses and the learned trial court without taking into consideration, the scheme, and object of Section 162 and the proviso passed the order of conviction and sentence. A legal battle is drawn about the legal fate of this GD entry lodged by PW-2 Noushad Ansari and the statement recorded of PW-1 Taliban, who came to the residence of Basiruddin after the occurrence. The GD entry exhibit-5 is replete with the materials of commission of a cognizable offence and, therefore, the statement recorded by Police Officers in the P.O. of Taliban wafers thin. The statement can only be characterised as inadmissible evidence as it comes within the mischief of Section 162 of the Code of Criminal Procedure. If the statement recorded by Police of PW-1 held to be the FIR, the GD entry lodged by Noushad Ansari about the occurrence does not form any bedrock of the prosecution case. He has also contended that recognition with the aid of burning lamp in the room in respect of the accused persons blessed by the detailed account of the occurrence is a remote possibility. He has also referred to wound, incriminating weapon plus the discharge of bombs which, according to the learned advocate, could not sustain the onslaught of law. The old animus between the prosecution witnesses and the accused, though surfaced on record, failed to receive due consideration of the learned court below.
13. The learned advocate for the prosecution while refuting the contentions of the learned advocate for the appellant has argued with vehemence that the case of the prosecution has been fully proved. The appreciation of evidence of the learned court below and the entire state of affairs lead to an irresistable conclusion about the guilt of the accused persons.
14. The statement recorded of PW-1 in the place of occurrence cannot but attributes to the ingredients of Section 154 of the CRPC which cannot be impaired at any rate. The learned court below took a worthy note of the same and admitted it into evidence.
15. Truth, proof, falsity, corroboration and contradiction dominate the criminal Jurisprudence where much weight could be given to each of them for appreciation of the case. The story of the prosecution when on the cradle, one but laments over the issue that the case of the prosecution bears no fulcrum. Amongst the four factors, the volcanic eruption of contradiction being vital in nature may foster suspicion about their reality or otherwise of the prosecution case. We are aware that the contradiction which are insignificant cannot crown any success but when it is potent, it becomes a formidable hurdle in the way of the parties.
16. Contradiction means a phrase of which the parts are expressly inconsistent eg. an innocent murderer, a fee simple for life. The above introduction is necessary as the court is called upon to decide the case on the well established theory of Fouler the crime-higher the proof. Thus, the evidence of the deceased family is of utmost consideration as the upshot of the judicial decisions lay down without any ambiguity that in the matter of proving the guilt, obscurity is unknown.
17. In the perspective of the above, we return to evaluate the evidence of Taliban Bibi PW-1, Gafur Ansari PW-2, Madhusudan Bauri PW-3, Nausad Ansari PW-4, Sk. Alim Ansari PW-5, Habib Ansari PW-6, Rafik Ansari PW-7, Hamiruddin Ansari PW-8, Hodeja Bibi PW-9, Abansari PW-10, Faruk Ansari PW-11, Sajran Bibi PW-12.
18. In the context of the prosecution case, the evidence of PW-13 Doctor Manoranjan Mondal is a turning point as it exposes the whole prosecution case.
19. Reverting back to examine the evidence of PW-1 Taliban Bibi who has given an account of the occurrence. She has given a publicity in her evidence that she woke up from sleep on hearing alarm of her husband and found Hafijuddin with a knife and Alauddin caught hold of her husband. She also gave a history that she recognised the assailants of her husband with the aid of the burning lamp in the room and the flesh of the torches of the accused. The Ansaries were at draggers drawn with the accused appears to be patent. But that by itself does not fit in with the case of the prosecution. Soon after the occurrence, she sent Janu to Village Pradhan for information, the father-in-law of Habib. Janu intimated about the incident to PW-3 Nausad who started for the P.O. with Janu. Nausad spoke of Taliban who intimated about the occurrence to him about the assailants of her husband who were the brothers of her husband. The names of the assailants and the mode and manner of recognition were apprised by her to him.
20. Looking to the evidence of PW-16 Gouri Shome the information by Janu to Nausad is a ruse. PW-16 is emphatic in his evidence that Janu did not report to Ansari that the brothers of Basiruddin murdered him nor Habib reported that he saw Alauddin, Afzauddin and Selim to murder his father. He did not state that she reported to him that she saw Selim to commit murder of her husband.
21. The contradictions are so overwhelming that it completely tilts the claim of recognition and the assailants. Taliban, Nausad, Habib and Faruk tried to make an embellishment being oblivious of the fact that the cat might come out of the bag. Truth is stranger than fiction which prevails and that demolishes the scope of falsehoods. Even Taliban made two different statements about the pre-occurrence state of affairs which are contradictory to each other. In exhibit-3, she is candid that she was sleeping with her husband on a Khatia in the East Facing Room. But during the evidence, she made an accrobatic feat about the pre-occurrence state of affairs where she introduced that she and her husband were sleeping in separate khatia. It may be legitimately expected of for the evidence led that sleeping on a common khatia by Taliban and her husband would invite assault on her as well considered with the evidence of injury of her husband. She woke up from the sleep, as said by her after hearing the alarm of her husband. This is at variance with the contents of the FIR, exhibit-3.
22. A wellknown dicta has been laid down not only by the apex Court of our country but also by the Privy Council that a man may lie but a document will never lie. It is a wellknown adage that one swallow does not make a summer but it is a case where one swallow makes a summer. The question arises in this way as it gyrates the whole issue where the evidence as to recognition is a subsequent creation by the machination of the Ansaries. Exhibit-5 the copy of the general diary book projects an unnatural shadow about recognition of any one of the appellants before us. A silence has been maintained in the said exhibit where none of the names of the appellants found their room in the general diary book. It flows from there (exhibit-5), “one Basiruddin Ansari of Mahul Koka, a relative of the informant has been murdered last night and some other inmates have been injured”. If Taliban conveyed the names of the assailants to Nousad through Janu, they would certainly find their way in exhibit-5. The evidence is water and air-proof that Nousad relayed the incident to P.S. The above evidence completely smothers the claim of recognition of the assailants. The entire claim of recognition, in our view, is a fabric of imagination conveniently conjured up by the Ansaries to secure a conviction by means other than holy under the pretence of land dispute. We cannot but say that the learned trial court should have adverted to the contents of the GD exhibit-5 before infliction of a penalty on the appellants. The recitals in exhibit-5 completely blows off the claim of recognition. In our view, the conviction of the appellants by the learned court is a futile wrist work. The findings, according to us about recognition are casual findings which are loaded off reasons for the unimpechable evidence on record.
23. Re-petition generates monotony but it is a source of wisdom which should be applied and made use of to adjudge the guilt or otherwise of a person who is placed between the two horns–life imprisonment or death penalty.
24. In the background of the above, the court should always be cautious and assess the evidence with circumspection.
25. It is pertinent to mention that the evidence of PW-13 Doctor Manoranjan Mondal gives a royal burial to the claim of recognition made by the Ansaries.
26. PW-13 examined Habish Ansari, Faruk Ansari and Ahab Ansari on 14.10.85 at 8-30 A.M. But it is curious to find from there that none of the injured disclosed the names of the appellants as assailants of their father and the authors of infliction of injuries on them. If they really knew about the assailants, it would not escape from the evidence of the Doctor who examined them on the following day of the occurrence, in particular, when the incident is serious, and the assailants known and the murder is gruesome. The telephonic information received by the P.S. from Nousad, exhlblt-5, contradictions surging from the evidence of the Ansaries, the oral testimonies of the Doctors regarding the injuries of the sons of the deceased when combined together or considered in isolation of each other affords a considerable belief in our mind that none of the witnesses succeeded in recognising any one of the appellants on the fateful night of the occurrence. The recognition for the adduction of evidence has been proved to be a subsequent creation and embellishment to rope in the appellants. The vital contradictions and other associated materials which are enlisted above are so deeply engraved in our mind that recognition is but the machination of the Ansaries.
27. The evidence of PW-12 Sajran Bibi is marked with suspicion, in particular, her conduct is strikingly improbable and it does not agree with the evidence of PW-16 Gouri Shome. Even PW-11 Faruk Ansari in his examination-in-chief made a bold statement that “Habij Ansari could not recognise any of the assailants”. He borrowed information from her mother about the assailants is a figment of fancy having no ring of truth behind it for the foregoing reasons. It is less said the better about the evidence of PW-6 Habib as it bears innumerable contradictions which never negotiate with the truth.
28. Now we want to add a few words about the seizure list witnesses. They are PW-3 Madhusudan Bauris PW-5 Sk. Alim Ansari who attested the seizure living at a comfortable distance from the residence of the deceased. We accept that the rustic witnesses or village witnesses have no respect for time. It cannot generate any suspicious about their being the witnesses to seizure for the documentory evidence on record but we cannot help holding that these two witnesses would certainly disclose the names of the assailants, if told by Taliban and the inmates of her house either at the time of seizure or thereafter. It is a very vital piece of evidence where the case of the prosecution becomes lacklustre of recognition. We also cannot leave the evidence of PW-4 Nousad Ansari as it suffers from exaggeration where the claim of recognition has been silently introduced which is void in exhibit-5. On perusal of his evidence, we cannot but hold that he made an endeavour to spin out a false case against the accused. He was also present at the time of seizure but curiously enough, none of the seizure list witnesses took the side of the prosecution about the recognition of the assailants claimed to have been made by PW-1 Taliban and the inmates of the house which is really lurks suspicion about the genuineness of the prosecution case. Undoubtedly, it was a suspicion which ripened into belief about the falsity of the prosecution case. In the premise, we cannot accept the evidence of the local witnesses who might be affected by the death and assault, and that they have given a colourable account of the occurrence. The evidence has raised a gulf as the witnesses are not credit worthy and their worthiness has been impeached for the flambuoyant evidence about the occurrence and the post-occurrence state of affairs.
29. There is another very potent fact which should not be lost sight of by a court of law, in particular, when the offence is grave and diabolical murder had been perpetrated by the appellants, as alleged. The prosecution is sought to have patronaged the recognition of the assailants is to secure a conviction of them adducing artificial evidence. It has pushed the pendulum too high, the object being to publicize or to give publicity of the recognition. But, according to us, there is no effective prescription by the prosecution to prove the case as the odds are too heavy. The devices were used by the prosecution to considerable profit for its success but falsehoods cannot dovetial with the facts. Apparently, the story of recognition appears to be real but when one goes through the bottom of it, the absurdity of recognition is patent.
30. It is admitted on all hands that the deceased are the near relations of the appellants who have locked horn with each other. In the situation, the commission of murder by a known person is really unrealistic as the known person will never venture into adventurism to commit such an act without concealing their identity where the chances of recognition are immediate than remote. This tragic side of the case has not been taken note of by the learned court while appraising the evidence. The strategy of the prosecution about-recognition reached the lowest ebb. This court cannot absorb the shock of this strategic device of the prosecution when its case does not have any profile or key whatever.
31. In the background of the above, the recognition as claimed by the prosecution witnesses is marked with embarrassment and unrealities to which no court of law could pay any dividend. The prosecution, according to us, has launched this campaign of recognition on the tainted evidence on record which cannot be scored through.
32. Mr. Ghosh in his submission has made a fruitless labour about admissibility of exhibit-4, the FIR and exhibit-5 the GD entry, on the ground that exhibit-5 the GD entry has knocked out exhibit-4 on the edifice that Section 162 CRPC is fully applicable. The GD entry, according to Mr. Ghosh, though disputed by the learned Advocate for the State is the earlier blush in point of time revealing the commission of a cognizable offence on the strength of which the law was set into motion. The same (exhibit-5), according to Mr. Ghosh, is the FIR and exhibit-4 cannot be treated as an FIR in this case.
33. Mr. Ghosh the learned Advocate for the State has strongly urged that exhibit-4 is the FIR as the GD entry exhibit-5 is deplete with information and it does not come within the fold of Section 154 of the CRPC. However, the views are divergent on this point. But it is alarming to find from exhibit-5 that a cognizable offence was committed on the anvil of which the SI PW-16 Mr. G.S. Shome left for the PS for investigation.
34. In the background of the above, Mr. Ghosh the learned Advocate for the State is emphatic that the claim of the learned Advocate for the appellant is completely stalled. The law is well settled by the apex court of our country in Tepinder Singh v. State of Punjab that the “cryptic and annonymous oral message which did not in term clearly specify the cognizable offence cannot be treated as FIR, the mere fact that this information was the FIR does not by itself cloth it with the character of FIR”. But when the author of the oral message is known who discloses the commission of a cognizable offence and the recognition of the culprits is given a bold publicity in the said oral message, it is very difficult to sort out the message which is earlier in point of time. It has also been held by a legion of precedents which included amongst Ors. Paddanarayana v. State of A.P. 1975 SCC(Cri) 427, Randhir Singh v. State 1980 Cr LJ 13 on the strength of which it could be safely held that the GD entry exhibit-5 should be treated as an FIR in this case. Our conclusion has been reinforced by the principal of law laid down in Hallu v. State of M.P. 1974 SCC (Cri) 462, and Dura Pandi v. State of Tamilnadu 1973 SCC (Cri) 486 that Section 154 of the CRPC speaks of an information relating to the commission of a cognizable offence given to an officer-in-charge of a police station.
35. In the instant case, the PS was contracted by PW-13 Noushad who conveyed a telephonic message of a commission of the cognizable offence and the recognition made by the inmates of the house. The essential conditions of Section 154 are thus fulfilled. The names of the assailants since not disclosed in the telephonic message, the GD entry exhibit-5 should be expelled from our consideration as submitted by Mr. Ghosh for the State is an argument ill-founded.
36. Thus, exhiblt-5 should be the FIR in this case and the statement made by PW-1 Taliban at her residence which was reduced in the shape of writing, exhiblt-4, can never be regarded as an FIR in this case, since lashed by Section 162 of the CRPC. We say this and no more.
37. We have gone through the Judgment meticulously and fortified by the evidence on record both oral, documentory and circumstantial, but we do not find sufficient and convincing material on record to agree with the decision of the learned court. The order of conviction and sentence, according to us, is not tenable in law as it militates against the entire state of affairs which escaped the attention of the learned court below.
Having heard the learned Advocates for the appellants and the learned Advocate for the State, we cannot but hold that the witnesses could not recognise any of the appellants on the said night of occurrence and for the state of materials, on record, they are entitled to benefit of doubt, thus. Accordingly, the order of conviction and sentence is set aside and the appeal allowed with a direction to set at liberty the appellants at once unless wanted in connection with any other cases. In they are on bail, they shall be discharged from their bailbonds.
Rabin Bhattacharyya, J.
38. I agree.