JUDGMENT
Rabin Bhattacharyya, J.
1. This criminal appeal is directed against the order of conviction and sentence passed by the learned Additional Session Judge against the appellant alias Labab Ali Molla in S.T.2(1)94 for having committed an offence of murder of his brother Jahurali.
2. The learned court below passed an order of conviction and sentence of life imprisonment and to pay a fine of Rs. 10,000/-with hard labour, in default, for two years more.
3. The story briefly.
The case of the prosecution reveals the savage outburst of temper over a trifling matter which snatched away the life of one of the brothers who was born of the same womb, one of whom is the appellant before us.
They used to put up in the same ancestral bastu but in different mess.
The fateful incident occurred on 27.3.91 over the felling of bamboos situated on a land of common ownership. The brothers fell out against each other and by the blow of a ballam, on the umbelical region of Jahurali of which the appellant was the author, caused his death.
An alarm was raised and the neighbours which included amongst others their relations living in an around the ancestral bastu in their village poured in.
Rajab Ali, the son-in-law immediately sought for the aid of a Doctor in vain as he was found him dead on his return. Not only Abul but also the deceased of the wife gave a copy book account of the assault including the architect of the heinous crime.
Rajab Ali laid an information with the P.S. which consequently gave rise to Bhangra PS Case dated 27.3.91 under Section 302 of the IPC.
4. Samiran Roy, the I.O. took up the investigation of the case and on termination of investigation, he submitted charge-sheet against the accused who was put up for trial before the learned SDJM. The learned SDJM committed the case and the accused to the court of session to stand trial.
5. The learned Additional Session Judge framed the charge against the accused under Section 302 which was read over and explained to Nawal who pleaded not guilty to the charge and claimed to be tried.
6. The prosecution to ground the charge against the accused examined as many as 14 witnesses and put in 5 documents and the weapon seized from the locale to corroborate the prosecution story that none but the appellant was the author of the crime. The defence of the accused is of bare innocence who according to him was hauled up on false accusation. The learned Trial Court afforded opportunities to the accused to explain the incriminating circumstances sprang up head from the evidence and the documents.
7. The learned court below on consideration of the evidence on record passed the above order of conviction and sentence and the accused, since aggrieved by and dissatisfied with the order of conviction and sentence, has called in question the propriety of the order of conviction through the medium of this appeal.
8. Mr. Dutta the learned Advocate for the appellant, to dislodge the order of conviction and sentence has with his usual dexterity argued with emphasis that the learned court, below not only misread the evidence but also misapplied the law in coming to the conclusion. The evidence, according to him of the different witnesses foreshadows that there is no eye-witness in this case which could impose liability on the appellant as the author of the crime. The learned court below proceeded, according to him, on basis of inference to the exclusion of substantive evidence on record.
9. In developing the point in support of acquittal, Mr. Dutta has overwhelmingly argued that the seizure of the Ballam exhibit-1 from the ancestral bastu without anything more can never be meat of the matter liabllng the appellant to be the author of the crime.
10. The claim of acquittal has been disputed by the learned Advocate for the State on the ground that the evidence on record unmistakably proved without any contradiction that it is Labab who was responsible for termination of life of his brother. The eye-witnesses, according to the learned Advocate for the State, have given a consistent testimony about the criminal liability of Labab which was not trammelled.
11. In the background of the above, the prayer for acquittal Is elusive.
12. Before embarking on an enquiry to adjudge the guilty or otherwise of the truth of the prosecution case, we have been taken through the evidence of the witnesses by the learned Advocates for the respective parties. The learned Advocate for the appellant has laid emphasis in his submission that the evidence is unsound, infirm and bristled with illegalities which can never foster any legal belief in the mind of the court that the appellant was the author of the crime. Though, the prosecution could not bring home charge against his, yet the court contrary to Section 3 of the Evidence Act, 1872 found him guilty and one cannot absorb the shock when such conviction was passed. The witnessed are all post occurrence witnesses who came to canvass the cause of the prosecution.
13. The prosecution claim the PW-7 Rupjan Bibi and PW-8 Arifan Bibi are the eye-witnesses whose account of the occurrence can never be disbelieved. They are the natural witnesses and had no annimus against the appellant, in the background of which, their evidence should be sustained. They will never substitute an Innocent for the real assailant. Neither the appellant nor the deceased is and was a man of affluence which stirred PW-7 and 8 to an action in regard to wreck vengeance against the appellant. We should not forget that the deed complained of is a dark deed which never took place during the darkness but in the broad day light, and, therefore, the identification of the accused is beyond dispute. But when we walk through the evidence, we cannot but find that the prosecution has missed the true for the wood. The case of the prosecution in the background of the evidence and other associated or allied materials on record does neither give any momentum nor any force. According to us, the evidence of PWs 7 & 8 is an apple warm eaten.
14. In view of the submissions made by the learned Advocate for the purpose when we turn to the evidence of PW-7 Rupjan Bibi and PW-8 Arifan Bibi, it is notorious to find from the evidence of Rupjan that “Labab assaulted Jahur with a Ballam. He pushed that in his abdomen. Jahur fell down Labab left the Ballam and fled away. I called my husband”, but she let the cat out of the bag when says during her cross-examination, “I was in the question Farez and his wife were in the ghat. The above evidence deals a death blow on the case of the prosecution and expels from our consideration that PWs 7 & 8 were never the eye-witnesses to the occurrence”.
15. In the background of the above evidence, she was present in the ancestral bastu during the occurrence assume considerable significance. Her presence at the place of occurrence has been refuted by the Season of the evidence of Abul Mollah PW-10 who has canvassed in his evidence “I did not see any body else at P.O. when I went to the P.O.”. Even the wife of the deceased PW-8 Arifan Bibi was not present in the place of occurrence as the wife of the deceased and the wife of PW-10 were in the ghat who reached the place of occurrence when Abul called them. It is not the case of the prosecution that the witnesses who claimed themselves to be the eyewitnesses saw the occurrence from the ghat which Is about150 cubic from the pure. Nor there is any microscopies evidence on record that they saw the occurrence from the ghat.
16. The evidence of PW-8 is not only ludicrous but also preposterous who came to oblige the cause of the prosecution which is unsustainable. She says in the very opening line of the cross-examination “Labab would have paid me maintenance I would not come to court”. It evidences, therefore, that she charged her testimony against Labab pre-emtnently having its pedestal on emotion and motive. It is also curious to find from the evidence of PWs 7 & 8 that none of them found Abul PW-10 in the place of occurrence. Therefore, their presence at the time of occurrence hovers doubt. Their evidence cannot be interpreted as an account of the eyewitnesses as their evidence about the occurrence suffers from embelishment who by their evidence figured as post-occurrence witnesses but not eyewitnesses to the occurrence. The testimonies of PW-1, PW-2, PW-4 & PW6, is all tainted as they borrowed information about the author of the crime from Abul whose evidence is viewed with distrust.
17. The evidence of PW-14, the I.O. deals a death blow on the evidence with respect to the aforenoted witnesses who have claimed that Abul booked them with information. The investigating officer has disputed such statement. It emanates from evidence that no such statement was made by the witnesses to the police received from Abul. We may have moral conviction about the offence complained of including its author, but that will not aid any relief to the prosecution as the prosecution is under statutory obligation to prove to the satisfaction of the court that it was none but the accused who was the author of the crime. Even the evidence of PW-9 does not indicate for a moment that Jasiman Bibi was ever informed by the wife of the deceased about the assailant. The other witnesses examined, in this case, are not much importance as some of them are witnesses to the seizure and witnesses to the investigation.
18. With a view to satisfy our judicial conscious, we have perused the evidence of PWs 7, 8 & 10 but their evidence does not inspire any evidence. As the evidence rendered by them about the incident has raised a gulf. There are enough holes which the prosecution made an endeavour to plague them in vain. The witnesses have consistently claimed that they saw the occurrence but their presence at the place of occurrence proves to be rather artificial. The evidence is not lucid but laboured endowed with an aim to secure the conviction of the accused. It is not only preposterous but also startling to find from the evidence that they saw a gruesome murder being committed with their own eyes and yet for reasons best known to them, they took the role of silent spectators. Their conduct is really hostile to the state of materials on record which does not find any support from the factual exposure of the case. The unnatural conduct of PWs creates a serious doubt about their credit worthlessness. According to us, we do not find them to be reliable witnesses and the appreciation made by the witnesses by the learned court below is an undue assumption and such appreciation made by him is anti to the provisions of Section 3 of the Indian Evidence Act. The appreciation of evidence, according to us, is mechanical to which we cannot but disagree. Their conduct belies the possibilities of their presence and various infirmities in their evidence, renders it unsafe to rely upon testimony. The only piece of evidence as highlighted by the prosecution is the recovery of the incriminating weapon the Ballam which is not conclusive in nature and is not compatible only with the guilt of the appellant and wholly incompatible with his innocence. This circumstance only creates suspicion about the complicity of the appellant, but suspicion cannot take the place of proof. We may, however, have moral conviction but unless there be legal evidence to connect the accused with the crime, the court cannot pass any order of conviction having its pedestal on surmises or conjecture. The statement recorded under Section 313 of the CRPC is completely devoid of the context as the learned court below over-looked the serious lacunae in the prosecution case who claimed themselves to be the eye-witnesses but their presence at the scene of occurrence has been found to be fragile is patent. We are at a loss to understand as to why this yardstick was not applied by the learned court below while appreciating the evidence in so far as the appellant is concerned. The evidence on the record in our opinion fails to connect the appellant with the crime and the prosecution has not proved the case against the appellant beyond a reasonable doubt. The appellant is entitled to the benefit of doubt. The conviction of the appellant under the circumstances cannot be sustained. We, accordingly, accept this appeal and set aside the conviction and sentence of the appellant. The appellant, if on bail, the bailbonds shall stand discharge and the appellant, if in jail, be set at liberty at once unless wanted in connection with any other case.
D.B. Dutta, J.
19. I agree with My Lord in his conclusion that the appellant should be: acquitted but I would like to add a few words of my own.
20. As a sequel to felling of some bamboos by Jahur All from a bamboo grove Jointly owned by him and his two younger brothers, Labab (the appellant) and Farej Alt (PW2) and possessed by the appellant, the appellant is alleged to have killed Johur All with a spear in the courtyard of their common homestead.
21. The evidence of the autopsy surgeon (PW13) read with other materials on record unmistakably proves that Johur All was murdered in the courtyard of their house.
22. In order to establish the authorship of this murder, the prosecution examined witnesses (PWs 1 to 11) out of whom four viz. PWs 3,5,10 and 11 gave virtually no evidence at all on this point while the evidence given by the other five viz. PWs 1,2,4,6 and 9 purporting to implicate with this murder was, it is needless to comment, hearsay and inadmissible.
23. We are thus left with the evidence of only two more witnesses viz. PWs 7 and 8, who are supposed to be eye witnesses, to scan so as to find out if their evidence was reliable and sufficient enough to sustain the conviction.
24. PW7 (Rupjan Bib) and PW8 (Arefan Bibi) are the relatives of the victim being his youngest brother’s wife and his widow respectively. PW7, in her examination-in-chlef, did not in so many words say that she was present at the P.O. at the material time or witnessed the assault, although, in her cross-examination she denied the defence suggestion that she was not present at the P.O. at the material time. Her claim of presence at the P.O. appears to have been belied by the evidence of PW8, according to whom, at the material time, she was in the house while PW7 was in the ghat, PW7 also admitted that she went to the ghat for bathing. The evidence of not only PW7 but also PW8 regarding their presence at the P.O. received a severe jolt from that of PW10 whose categorical assertion is that both PWs 7 and 8 were in the ghat and they came to the P.O. on being called by him.
25. Then again there is no evidence to suggest that while witnessing this murder these two witnesses did play the role of anything but mute spectators, and if they really so behaved, such behaviour would not at all be consistent with common and natural course of human conduct.
26. It is very much significant to note here that PWS was not at all examined by the I.O. during the investigation and. that she would not have come to depose against the appellant had he given her maintenance.
27. The claim of PWs 7 and 8 that they present at the P.O. during the assault and witnessed the assault thus appears to be doubtful.
28. True, the ghat is 150 cubits away is also visible from the P.O. but then, PWs 7 and 8 never said that they witnessed the assault from the ghat.
29. On a careful scrutiny of the evidence of PWs 7 and 8, it is found that it falls short of what is required to prove the guilt of the appellant beyond any shadow of reasonable doubt.