JUDGMENT
Bhaskar Bhattacharya, J.
1. These two appeals were heard analogously as those were preferred against a common judgement passed by the learned Sessions Judge.
2. By the said judgement, Sk. Nazrul, the appellant of the C.R.A No. 245 of 1985, was found guilty of the charges under Sections 302/34, 148 and 324/34 of the Indian Penal Code. For committing offence under Sections 302/34 of the Code, he was sentenced to suffer life imprisonment. However, no separate sentence was imposed upon him for committing the offences under the other Sections of the Code, mentioned above.
3. C.R.A No 219 of 1985 has been filed by other thirteen accused persons who have all been found guilty under Sections 148 and 324/34 of the Code. For committing offence under Section 148 of the Code, they have been sentenced to suffer rigorous imprisonment for two years and for the crime under Sections 324/34, rigorous imprisonment of one year has been ordered. Both the sentences were, however, directed to run concurrently.
4. Although, all the appellants were also indicted under Sections 326/34 of the Code for committing grievous hurt to Sk. Tohid and Sk. Mojahar, those charges could not be substantiated by the prosecution.
5. The prosecution case is based on the complaint lodged by one Mohammad Ali Molla, the PW-1, which was treated to be FIR and was marked as Ext-1. The allegations made in the Ext-1 may be abridged thus:
(a) On September 28, 1979 at about 5:30 p.m. the informant went to Khairamari Hat for the purpose of purchasing cloths from the cut-piece shop of Hazi Rahaman. He was accompanied by Mojahar, Haran Rashid and Tahid Sk., all of village Khairamari.
(b) At the market, the informant saw that all the appellants and one Sk. Billal, since deceased, all of Khairamari, being armed with deadly weapons like sword, bhojali and lathi in their hands came from the direction of the house of Jasim and attacked Tahid Sk. Billal and Nazrul Sk., being armed with sword and bhojali respectively, attacked him. At the relevant time, the informant, Majohar, Haran Rashid and Mokshed stood in front of the shop of Hazi Rahaman.
(c) Mokshed Master, the son of Hazi Rahaman, requested them to spare them as they had no fault, but, Billal Sk. said that Hazi was a notorious man and he should be killed. Saying that, Billal with his sword and Nazrul with his bhojali pierced Hazi Rahaman. Hazi Rahaman fell on his back. At that time Bajit Mondal and Mokshed Prodhan directed them to bring the head of Hazi after cutting. Those two persons were standing with lathi in their hands. Hearing such order, Billal Sk. hit Hazi on his neck and the, neck was severed. Hazi instantaneously died on the place of occurrence.
(d) Mokshed Master then requested them with folded hands to forgive him, but Billal Sk., without hearing anything penetrated Mokshed Master with his sword. The sword cut his hand and went through in his chest. Then Nazrul hit him on the abdomen with his bhojali. Mokshed Master began to run from the room. At that time, Bajit Mondal and Mokshed Prodhan asked them to finish him. Billal and Nazrul then chased Mokshed Master from behind and hit him with their sword and bhojali. Mokshed Master fell down immediately. Nazimuddin, one of the accused, cut the head of Mokshed Master with his sword. Mokshed Master died within a while.
(e) Thereafter, both Billal and Nazrul began to strike Mojahar and Nazimuddin, another son of Hazi, aiming at their heads with the intention of murdering them. The ears of Mojahar were severed and he was seriously injured.
(f) Billal hit Nazimuddin on his abdomen with his sword. Both were admitted into hospital in serious condition. Mokshed Ali Mondal, the village Prodhan, and Bajit Mondal took active part in all these acts.
(g) The informant, Hazi Rahaman and Mokshed Master believed in one “aajan” and for that reason, the attack was made on them. The accused persons also stole away the clothing from the shop of Hazi Saheb amounting to Rupees eight to ten thousand.
6. The accused persons pleaded innocence and claimed to be tried. At the time of trial, the prosecution examined thirteen witnesses in support of the prosecution case. The accused persons decided not to lead any evidence in support of their defence. They were, however, examined by the Court under Section 313 of the Code of Criminal Procedure. Sk. Billal, one of the accused, however, died before commencement of the trial.
7. As indicated earlier, the learned Sessions Judge convicted Nazrul Sk. for murder of Mokshed Master and Hazi Rahaman and sentenced him to imprisonment for life. Other accused persons were convicted under Section 148 and Section 324/34 of the Indian Penal Code and were sentenced to two year’s rigorous imprisonment for committing offence under Section 148 and one year’s rigorous imprisonment for committing offence under Sections 324/ 34. Both the sentences were ordered to run concurrently.
8. Being dissatisfied, Nazrul has preferred C.R.A. No. 245 of 1985 while other thirteen persons have preferred C.R.A. No. 219 of 1985.
9. Mr. Dastoor, the learned Counsel appearing on behalf of the appellants in these two appeals has raised various questions of law pointing out irregularities in the investigation and according to him the learned Sessions Judge erred in law in convicting the accused persons on the basis of the materials on record. 10. According to Mr. Dastoor, Exbt-1, the so-called FIR cannot be treated as such in view of the fact that the same was recorded at a point of time when the investigation had already started.
11. He points out that in this case, seizure started at 11:15 p.m. on 28 September, 1979 while Exbt.-1, the FIR, was allegedly handed over to the Police at 3 a.m. on 29th September, 1979. According to Mr. Dastoor, the learned Trial Judge erred in treating the said Exbt-1 as FIR and relying upon the same as such although the same is hit by Section 162 of the Code of Criminal Procedure. Mr. Dastoor further contends that the FIR was really written long thereafter as will appear from the fact that the same reached the Magistrate on 2 October, 1979.
12. Mr. Dastoor next contends that it will appear from the evidence adduced by the alleged eye-witnesses itself that they were set up ones and were not at all present at the time of alleged incident. Mr. Dastoor further points out that although according to the witnesses, Mokshed Master died within eight feet to ten feet from the shop room of Hazi Saheb, yet the police had not made any search or seizure at the said place of occurrence. On the other hand, Mr. Dastoor continues, there is no plausible explanation as to why the body of Mokshed Master was taken to the house of Hazi Rahaman when the dead body of Hazi itself was lying at the place of occurrence even at the time of seizure and inquest. Thus, according to Mr. Dastoor, the place of occurrence of death of Mokshed Master as mentioned in the FIR was at variance with the one found by the Police as per inquest report.
13. Mr. Dastoor points out that the prosecution in this case has asserted that PW-1, PW-2, PW-4, PW-5 and PW-6 are the eye-witnesses to the incident and out of those persons, the PW-1, PW-4 and PW-6 are the injured witnesses. He, however, submits that it would appear that PW-1, PW-5 and PW-6 were examined by the doctor not on 28 September, 1979, the date of incident but they went to hospital in the morning of 30 September, 1979. Mr. Dastoor points out that their alleged injuries were very much minor in nature and even it is the opinion of the PW-8, the doctor, who examined them at the hospital that such injuries were sustained within 24 hours of the examination. Mr. Dastoor, thus, contends that those minor injuries were self-inflicted and there is no reason why they should go to the hospital for such minor injuries after 42 hours from the time of the alleged occurrence when three other persons claiming to be injured were examined on 28 September, 1979.
14. As regards the injuries of PW-4 who was examined by the doctor on the date of incident namely 28 September, 1979, Mr. Dastoor points out that there is only one injury in the abdomen of PW-4, but PW-1 has stated in his evidence that such injury was caused by Sk. Billal, since deceased. Even in the FIR, it is specifically pointed out that Sk. Billal injured PW-4 in his abdomen by his sword. He, thus, contends that PW-4 has made deliberate false statement before the Court in evidence that Nazrul, the appellant in C. R. A. No. 249 of 1995 inflicted such injuries on him. By referring to the evidence of PW-9, he submits that PW-4 stated before I.O. that while the miscreants were retreating, he was stabbed on the abdomen with the sword and the said PW-4 did not state before I.O. that the appellant gave a thrust through his sword on Mokshed Master. According to Mr. Dastoor, Nazrul, therefore, was not present at the time of occurrence. He further submits that even PW-4 Harun Rashid did not state before I. O. that Nazrul gave a thrust on Nazimuddin with bhojali.
15. By referring to the aforesaid pieces of evidence, Mr. Dastoor submits that PW-1, PW-4, PW-5 and PW-6, thus, cannot be believed as they are procured witnesses.
16. As regards the evidence of PW-7, namely, Naimuddin Mondal, a witness of the alleged inquest and seizure, Mr. Dastoor submits that the said witness is a resident of a village situated about five to seven miles away from Khairamari. The said witness in cross-examination had stated that the blood-stained earth was seized at 2:30 or 3 a.m. whereas according to the seizure report itself, the same was done at 11:15 p.m. on 28 September and 12:30 a.m. on 29 September. Moreover, he himself having admitted that he was with the police from 12 midnight till 5 a.m. and that the dead bodies were sent to morgue in his presence, he should be branded as a liar because the time of inquest of dead body of Hazi is 6:30 a.m. on 29 September. Therefore, he could not be present when dead bodies were sent to morgue if he was with police till 5 a.m.
17. In this connection, Mr. Dastoor also refers to the evidence of the doctor who performed autopsy on the dead bodies. Mr. Dastoor submits that so far the dead of Hazi is concerned, there was only one injury noted by the doctor, namely cutting of the throat. He submits that all the alleged eyewitnesses specifically asserted that Nazrul, the appellant, had also made repeated blows with bhojali on Hazi in addition to injury caused by the sword of Sk. Billal but no such injury was noticed by the doctor. Mr. Dastoor contends that the aforesaid evidence of the doctor falsifies the allegation of the alleged eye-witnesses that Nazrul was present at the time of occurrence. Mr. Dastoor further submits that in this case even the injury reports of the witnesses and the post-mortem reports of the deceased were not exhibited for the reasons best known to the prosecution. Under such circumstances, Mr. Dastoor contends that Nazrul was not at all present at the time of occurrence and the allegation of the assumed eye-witnesses that Nazrul struck blows on Hazi Rahaman should be disbelieved.
18. Similarly, as regards the death of Mokshed Master, Mr. Dastoor contends that if Nazrul was not present at the time of occurrence of assault on Hazi Rahaman, he could not also be present at the time of death of Mokshed Master which according to the prosecution occurred immediately thereafter as a consequence of the self-same incident. Mr. Dastoor further contends that there has been no search and seizure at the alleged place of death of Mokshed Master but such seizure had taken place in the house of Hazi Rahaman. Therefore, the narration, of incident by the witnesses for the prosecution that Mokshed died within 8 to 10 feet from the shop of Hazi immediately after the death of Hazi was absolutely concocted story.
19. As regards the appellants of the other appeal, namely C. R. A. No. 219 of 1985, Mr. Dastoor submits that the learned Sessions Judge at the time of examination of the accused persons under Section 313 of the Code of Criminal Procedure did not put any question to them indicating that they were at all involved in the alleged incident. He points out that the same set of questions which were put to Nazrul, the appellant of the other appeal, were also put to the appellants in C. R. A. No. 219 of 1985 but in those questions, any role played by the appellants of C. R. A. No. 219 of 1985 was not at all mentioned. He, thus, submits that in the absence of statement to those appellants drawing their attention to evidence involving them in the incident, no conviction can be given. He, thus, prays for dismissal of the other appeal on that ground alone. Apart from that, according to Mr. Dastoor, if the evidence of the alleged eyewitnesses is disbelieved in the other appeal, the appellants of C.R.A. No. 219 of 1985 are also entitled to get the self-same benefit in their appeal.
20. Mr. Dastoor, thus, prays for setting aside the order of conviction and the sentence imposed upon the appellants in these two appeals.
21. The aforesaid contentions of Mr. Dastoor have been seriously disputed by Mr. Ghosal, the learned Counsel appearing on behalf of the prosecution. Mr. Ghosal submits that even if there are minor discrepancies in the evidence adduced by prosecution witnesses that should be ignored by this Court. Mr. Ghosal submits that there is no dispute that two persons were murdered in open market and there is no reason why the prosecution witnesses who specifically indicted the appellants in the said incident should be disbelieved. Mr. Ghosal contends that the eye-witnesses being injured ones, their evidence should not be disbelieved for minor discrepancies in narrating the incident. He submits that incident occurred in 1979 whereas the witnesses gave evidence in 1984 after the lapse of five years. According to Mr. Ghosal, in view of lapse of five years, there may be some variation of the statements earlier recorded by the police.
22. As regards the questions whether Ext-1 should be treated as FIR or not, Mr. Ghosal frankly concedes that the seizure having taken place at 11:15 and 12:30 in the night, a complaint handed over to police at 3 a.m., must be held to be hit by Section 162 of the Code of Criminal Procedure. He however submits that even if Ext-1 is not treated as FIR, there is no bar in considering the evidence of eye-witnesses to the incident and if such evidence is believed, conviction on the basis of such evidence can be upheld.
23. Regarding absence of seizure at the place of death of Mokshed Master. Mr. Ghosal submits that it was a mistake on the part of the I.O. and for his mistake the genuine murderer cannot be spared.
24. As regards defects in the examination under Section 313 of the Code of Criminal Procedure in C. R. A. No. 219 of 1985, Mr. Ghosal submits that such point is a technical one and for such mistake of the learned Sessions Judge, the prosecution cannot be blamed and this Court may, at the most, remand the matter back to the Sessions Judge for proceeding afresh from the stage of examination under Section 313 of the Code so far the appellants in the said appeal are concerned. Mr. Ghosal, thus, prays for dismissal of C. R. A. No. 245 of 1985 and for remanding C. R. A. No. 219 of 1985 for giving fresh opportunity of examination of the accused persons under Section 313 of the Code of Criminal Procedure if the Court is inclined to accept the plea as regards non-compliance of the provisions of Section 313 of the Code.
25. At the very outset, we propose to consider whether the Ext-1, the complaint lodged by the PW-1, can be treated as an FIR and whether the learned Sessions Judge erred in law in relying upon the said Ext-1 as such.
26. FIR is one of the modes by which a person may put the criminal law into action by giving information of commission of a cognizable offence under Section 154 of the Code of Criminal Procedure. The information so given is called “first information” because it is the basis upon which an investigation is commenced under Chapter XII of the Code. However, the receipt and recording of information is not a condition precedent for the setting in motion of criminal proceedings and such information need not necessarily be given by a person having the first hand knowledge of the fact and may be just hearsay. Similarly, the mere fact that the information given by the informant was not properly recorded by the Police Officer in accordance with the mandate of Section 154 of the Code, it cannot be said that no investigation in law could commence. The information so given need not be in minute details. The object of Section 154 of the Code is twofold:
First, to forthwith inform the Judicial Officer before whom the case will be ultimately tried, the facts given immediately after the occurrence and the materials on which the investigations commenced.
Secondly, to protect the accused against the subsequent variations and additions of the improved allegations that may be hatched.
27. Whether a particular statement is an FIR or not is important in the sense that if such statement is made really in terms of Section 154 of the Code, it becomes admissible in evidence, though, not a substantive piece of evidence; whereas if the same is recorded after the investigation under Chapter XII of the Code has commenced, it should be treated to be a statement under Section 161 of the Code and is not admissible except for the purpose of contradiction as mentioned in Section 162 of the Code, subject of course, to the provisions contained in Sections 27 and 32 of the Evidence Act.
28. Keeping in mind the aforesaid broad propositions of law, we now proceed to consider the materials placed before the Court in this case.
29. In the case before us there is no dispute that one Hazarat AH, the local Dafadar, went to the Police Station and lodged a G.D. on the date of incident at about 7-45 p.m. and on the basis of that information, the police set out for the village. It further appears from the seizure report that the police started seizure at 11-15 p.m. on the date of incident. Thus, the written complaint handed over to the police at 3-00 a.m. of the next day was definitely hit by Section 162 of the Code as the same was given to the police after commencement of the investigation. Therefore, the learned Sessions Judge erred in law in treating the said complaint as FIR and proceeding accordingly.
30. We are quite conscious of the position of law that merely because the learned Trial Judge wrongly proceeded by treating the Ext-1 as FIR., for that reason alone, the order of conviction cannot be set aside. We, therefore, proceed to consider the materials on record by considering the Ext-1 as the statement of PW-1 under Section 161 of the Code and to verify whether on the basis of the materials on record’as it stands after excluding Ext-1, the conviction and the sentences imposed upon the accused can be sustained.
31. The PW-1 stated in his evidence that the incident occurred on 28 September at about 5 p.m. On that day, he went to Khairamari Hat for purchasing clothes from the shop of Haji Rahaman. He found a row coming from the side of house of Jasimuddin. He noticed that Tahid Sheikh was being chased by a number of persons. Billal and Nazrul were among them. Billal hit Tahid with sword near his ear. The ear of Tahid was severed by that blow. Thereafter, Nazrul dealt a blow with “bhojali” on Tahid. Tahid, however, managed to escape. Thereafter, Billal and Nazrul came near the shop of Hazi Rahaman. Seeing them, Hazi Rahaman entreated them not to do harm as he did not do anything. But Billal penetrated the chest of Hazi Rahaman with his sword. Thereafter, Nazrul gave blows on Hazi Rahaman with “bhojali”. As a result of those assaults, Hazi Rahaman fell down on the ground. Thereafter, Billal cut away the head of Hazi Rahaman with his sword. At that stage, Mokshed Master, the son of Hazi who was at the shop, requested them not to kill him. But Billal Sheikh did not listen to his request and pierced the chest of Mokshed with the end of his sword. Nazrul then gave blows with his “bhojali” on Mokshed Master. Mokshed, in order to escape, started running from that place. At that time, Nazrul gave another blow with “bhojali” and overtook him within 10 to 12 feet and assaulted Mokshed, as a result, Mokshed fell down and died instantaneously. After such incident, both Billal and Nazrul came back to the shop of Hazi, where PW-1 himself, Mujahar and Harun Rashid were waiting. Billal and Nazrul then assaulted- Mujahar. Billal dealt blows with his sword and Nazrul with his “bhojali” on Mujahar. Nazimuddin, another son of Hazi was present at the shop. Billal struck Nazimuddin on his belly with his sword. Nazimuddin, after being assaulted, ran away from the place. Billal then said that two more were yet to be finished and saying that he lifted hiss word towards PW-1. The first blow of Billal struck the “chala” of the shop-room. Billal again lifted his sword to hit PW-1, which injured the right finger of PW-1. Harun Rashid, PW-6 was there. Billal and Nazrul hit Harun Rashid with “lathi”. The “lathi” was lifted from a place near the shop-room of Hazi. All the injured persons were examined by doctor. The dead body of Mokshed Master was taken to his house by PW-1 with the help of Ershad, Khorshed and Lokman, the PW-2. The PW-1, Hazi Rahaman and his sons were in favour of one “aajan” whereas the accused believed in two “Aajans” and that is the source of dispute between the parties.
32. Lokman Ali, the PW-2, is the son of the nephew of Hazi Rahaman. He has more or less corroborated the statements of the PW-2 but he did not state the fact that he took the dead body of Mokshed Master to the house of Hazi with the PW-1 and others. According to this witness, the incident occurred in the afternoon and not in the evening and he returned home in the late evening. He also came to Hazi’s shop for purchasing cloths. He, however, could not name the other fourteen- fifteen persons who accompanied Billal and Nazrul at the time of assault. He corroborated the version of the PW-1 that Mokshed died within 10 cubits from the shop of Hazi Rahaman and the murders were committed one after the other within a short span of time. He, however, did not say anything about the alleged assault on Mujhar or on Nazimuddin and mentioned only the assault on Tahid, Hazi and Mokshed.
33. Hazarat Ali is the PW-3, but the prosecution for the reason best known to it did not put any question to him in examination-in-chief and as a result the defence had no occasion to cross-examine him.
34. Nazimuddin, Anr. son of Hazi Rahaman figured as PW-4. He was injured and was treated by the doctor on the date of the incident. According to him, at the time of the alleged incident he was present at the shop of Hazi. He has narrated the names of all the accused persons involved in the incident. According to him, Nazrul injured him in his abdomen by the “bhojali”. This statement is materially at variance with the statement made by the PW-1. The PW-1, both in his written complaint and in evidence specifically stated that Billal Sk. injured Nazimuddin with his sword. Nazimuddin, however, stated before the Investigating Officer that at the time of retreating of the accused persons, he was injured. Thus, this PW-4 has made a different statement in evidence that he was injured by Nazrul and that he was all along present in the shop of Hazi.
35. One Sajahan Sk. claiming to be a witness to the incident appeared as PW-5. According to this witness, the mob led by Billal and Nazrul first attacked Tahid SK. Then they assaulted Mujhar. Next was the turn of Hazi. After that, Mokshed Master died. Ultimately Nazimuddin was attacked. He further mentioned that PW-1 and one Harun Rashid were also injured. According to this witness, all the assaults had taken place inside the shop room of Hazi. He claimed that Hazi was lying by the side of his shop and Mokshed was lying within 5 or 6 cubits away from the shop of Hazi.
36. Harun Rashid is the PW-6. He claimed to be an injured eye-witness. According to him, he was hit by a lathi by the accused Mohar. He was, however, not examined by the doctor on the date of incident but on September 30, about 41 hours after the alleged incident. He has stated that Nazrul and accused Nazimuddin thrust blow on the abdomen of Nazimuddin, the PW-4, although the PW-4 himself never described accused Nazimuddin as an assailant of the injury inflicted upon him. According to this witness, the accused Habibur Rahaman also gave blow on Hazi in addition to the ones given by Billal and Nazrul. He has further stated that the accused Alauddin also hit Mokshed Master with the bhojali although the names of the accused Nazimuddin, Habibur and Alauddin were not mentioned by any other witness as the assailant of Hazi, or Mokshed or Nazimuddin, the PW-4. In cross-examination, he stated that they sent one Mohammad Sk. a co-villager to inform police and after informing the police when he returned, thereafter the Daroga Babu came to the spot. He admitted in cross-examination that Hossain Master is a respectable impartial man of the locality. It may not be out of place to mention here that the Ext-1 was scribed by the said Hossain Master. This witness has asserted that he told the doctor who treated him that he was hit by Mohar.
37. Naimuddin Mondal, the PW-7 is a witness to the seizure. He resides in a village situated more than five miles away from the place of occurrence. According to him, the Police Officer seized the blood-stained earth and cloth in his presence at 2-30 or 3-00 a.m. and the dead bodies were also sent to morgue in his presence at 5 a.m. he claimed that he was with the Police Officer from 12 midnight till 5 a.m. Strangely enough, the seizure reports show that those were made at 11-15 p.m on 28 September and 00-30 a.m. on 29 September. It further appears from record that the inquest of the dead bodies were made at 6 a.m. and 6-30 a.m. respectively and as such it was impossible for this PW-7 to be present at the time of sending the dead bodies to the morgue.
38. PW-8 is the doctor who examined the injured witnesses on the date of incident as well as on September 30, at about 10 in the morning after 41 hours from the time of incident. Of the three injured persons who were examined on the date of incident, Tahid and Mojhar were not examined as according to the PW-1, Tahid left for Bangladesh and Mojhar died before the start of trial. The learned Trial Judge absolved the accused person of the charges under Section 326 against Tahid and Mojhar and the State has not preferred any appeal against that order and as such, we refrain from discussing the alleged injuries of those two persons. So far the injury of PW-4 was concerned, the doctor opined that it was a simple one 1/2″ x1/4″ incised wound over the lower abdomen on the left side. On 30 September, he examined PW-1 and PW-6 and their injuries are described as follows:
“PW-1:- one small abrasion over the back aspect of the right little finger and swelling over the outer aspect of the lower third of the right forearm. Both the injuries are simple and might have been caused by any blunt weapon like lathi. Age of the injuries was within 24 hours.
PW-6:- one abrasion 1″ x 1/6″ over the back aspect of the right forearm. Nature- simple. The injury might have been caused by some blunt weapon as lathi. Age of the injury – about 24 hours.”
39. This witness in cross-examination admitted that the signature or the thumb impressions of the patients were not taken on the injury report and that there was no note in the injury report as to who introduced the patients to him. He further stated that he did not ask the name of the assailants to the patients. According to him, he usually did not ask such question and if any body voluntarily disclosed the names of the assailants, then it was noted down. He further stated that in his report no name of the assailant appeared. He further stated that the injuries caused to PW-1 and PW-6 were superficial and minor in nature and might be caused by various reasons. The injury report was however for the reason best known to the prosecution not produced and exhibited.
40. Pallab Bhattacharya, PW-9, was at that point of time in charge of the police station when the Officer-in-Charge left for investigation. He has proved the Ext-1 drawn up by him on the basis of complaint lodged by PW-1. In cross-examination, he has admitted that Ext-1 was received by the Sub-Divisional judicial Magistrate on October 2, 1979. He has further admitted in cross-examination that Nazimuddin, the PW-4, did not state in the statement under Section 161 of the Code that ten or twelve persons came from north-eastern side and that they attacked Tahid or assaulted him. He has further stated that the said PW-4 stated before the Investigating Officer that while the miscreants were retreating, he was pierced on the abdomen by a sword. According to him, the said PW-4 also did not state before I. O. that Bajit Mondal ordered to cut the head of Hazi or that the accused Nazimuddin gave a thrust with a sword on Mokshed Master. The said witness further stated that Harun Rashid did not state before the I. O. that Nazrul thrust a bhojali and Habibur hit Hazi with a bhojali. Harun also did not state before the I.O. that Bajit Mondal stated that the accused should see that Mokshed could not escape. Nor did he say before the I.O. that Nazimuddin overtook Mokshed Master and gave a thrust with a sword. According to this witness, Harun also did not say before the I. 0. that Nazimuddin dealt with a blow on Mokshed Master by a bhojali. He also did not state before the I. O. that Nazrul gave a thrust on Nazimuddin with a bhojali or Mojhar dealt with a lathi blow on him. The most important fact that has come out of his cross-examination is that in this case the Officer-in-Charge of the police station set out for the spot after receiving a G.D. disclosing the fact of commission of a murder at the Khairamari Hat. The said PW-9, however, could not throw any light on the contents of the said G.D and stated that the copy of the G.D. was not available in the case diary.
41. PW-10, a police constable who identified the dead bodies before the doctor who conducted autopsy admitted in cross-examination that at the time of inquest he could not know the name of the assailants. He, however, said that the inquest was held in the late evening although the same according to the report itself was made at 6 a.m. and 6-30 a.m. respectively.
42. Baidyanath Biswas, the PW-12, is the Medical Officer who conducted necropsy of the dead bodies. Although he found four different marks of injuries on the dead body of Mokshed Master, only one injury at the neck of Hazi was found. The description of injury of Hazi is quoted below:
“One cut throat injury (incised wound) in front of the neck at its root from left side to right side about 4″ x 2″ gap into bone deep. All soft tissues in front of spinal bone were cut through and through. About 1″ x 1/2″ wound in the lower part of the sternum present with intact bone not broken by cut”.
43. For the reason best known to the prosecution, the post-mortem report was not produced and marked as exhibit.
44. PW-13, an Assistant Sub-Inspector of Police, at the last, brought the G.D. lodged by Hazarat AH, the Dafadar of the village on the date of incident at 7-45 p.m pursuant to which the Officer-in-Charge of the police station commenced investigation as admitted by the PW-8 earlier. The said G.D. was marked as Ext-7.
45. From the aforesaid materials on records it is clear that at 7-45 p.m. on the date of incident, the local Dafadar by travelling a distance of 22 Kms informed the local police station about commission of a murder and such information was recorded as a G.D. and the Officer-in-Charge rushed to the spot for investigation and the seizure took place at 11-15 p.m. at the shop and immediately outside the shop room of Hazi where his dead body was still lying. , The prosecution suppressed the aforesaid fact of lodging G.D. and tried to rest the case on the basis of written complaint handed over to police at 3 a.m. on the next day when investigation had undisputedly commenced. It is rightly contended by. Mr. Dastoor, the learned Counsel appearing on behalf of the accused that the reason for suppression of such G.D. is that in the said G.D only the death of Hazi was disclosed and there was no mention of the murder of Mokshed. It is strenuously contended by Mr. Dastoor that if the prosecution case was true, the Dafadar would have indicated commission of two murders instead of one disclosed in Ext-7. According to Mr. Dastoor, the murder of Mokshed had taken place in the house of Hazi subsequently and not at the distance of 10 cubit from the shop of Hazi immediately after the death of Hazi as projected by the prosecution. Mr. Dastoor contends that if the death of Mokshed had really taken place at the place suggested by the prosecution witnesses there was no valid reason for not making seizure and search at that place. I also find substance in the contention of Mr. Dastoor that the story of removal of the dead body of Mokshed to his residence stated by PW -1 is a concocted one to suit the prosecution case. The PW-1 in his evidence has mentioned the names of three persons who helped him to remove the dead body of Mokshed but of those three persons, the prosecution has examined only Lokman, the PW-2, who did not utter a single sentence about such fact of removal of dead body. The owner or the driver of the bullock cart by which his body was allegedly removed was even not examined. Moreover, when the dead body of Hazi was lying in the same place till morning there is no plausible reason for removing the dead body of Mokshed lying at a distance of 10 cubits from that very place by a bullock cart which could easily accommodate two dead bodies. Hazarat Ali, the Dafadar who lodged information before police was the best witness who could explain the position but the prosecution did not put him any question in the witness box. If the place of death of Mokshed is found to be the house of Hazi, a place different from the one stated by the prosecution witnesses, the case made out by the prosecution should be totally disbelieved. At this stage, it may be mentioned here that PW-6 in his evidence stated that one Mohammad Sk., a co-villager, went to the police station to inform the incident and after he came back giving such information, the Daroga Babu came to the village. The prosecution has not brought before the Court either the said Mohammad Sk. as witness or the copy of the information given to the police station by the said person. For withholding such information, in our opinion, adverse inference should be drawn against the prosecution. It can be reasonably argued that such information was inconsistent with the prosecution case made at the time of trial and for the aforesaid reason Ext.-7 was suppressed before Court at the first instance.
46. On consideration of the aforesaid materials on record we find that the prosecution has failed to prove that Mokshed Master died at the Hat within 10 cubits from the shop room of Hazi immediately after the murder of Hazi. Ext-7 proves that initially when Hazarat Ali left for police station, Mokshed was not killed and as such, he was not killed in the incident taken place at the Hat. Thus, the prosecution has failed to prove that the accused persons of these two appeals are involved in the murder of Mokshed and they have given false evidence of murder of Mokshed.
47. As regards the killing of Hazi, all the accused have alleged that Billal had cut his head and Nazrul and others made blows with bhojali on the body of the Hazi. We have already pointed out that in the evidence given by the doctor who conducted post-mortem examination of the dead bodies specifically found only injury at the throat of the deceased and there was no other stabbing injury on the body of the Hazi. The prosecution has unusually not exhibited the postmortem report. Even if we believe the evidence given by the doctor, it is apparent that all the alleged eye-witnesses produced by the prosecution made false statement that Nazrul struck blows with bhojali on Hazi. It is now settled law that in case of irreconcilable conflict between ocular evidence and medical evidence the presumption is that the prosecution did not bring the real picture before Court. (See Srinevus v. Rambharose and Ors., ).
48. We have already pointed out that the alleged eye-witnesses made contradictory statements. The PW-1 made specific statement that Billal struck PW-4 with sword whereas the PW-4 stated that Nazrul caused such injury only to implicate him falsely. Even no such allegation was made in the statement under Section 161 of the Code. He did not mention the name of Nazrul before the doctor. The nature of injury alleged to have been caused to PW-1 and PW-6 and the fact that those two witnesses were examined by the doctor after 41 hours also indicated that those injuries were not the outcome of the incident when the doctor even said that the former sustained the injuries “within 24 hours” and the age of the injury of the latter was “around 24 hours”. The non-production of the injury report also casts doubt about the veracity of the evidence given by the prosecution. We, thus, find that the prosecution has failed to prove that the PW-1 and PW-6 are really “injured witnesses”. The PW-4, it is apparent, was not injured by at least Nazrul and as such his version that he was injured by Nazrul is out-and-out a false statement and should be discarded without any hesitation.
49. PW-2 is the son of the nephew of Hazi and although he claimed to be present at the time of incident, he did not mention the attack on either Nazimuddin or Mojahar and also could not name any other person than Billal and Nazrul. Even he did not mention that he along with PW-1 and others brought the dead body of Mokshed to his residence as asserted by the PW-1 and according to him he was in the Hat on that day for 15 minutes only. If he was in the Hat only for 15 minutes, it is impossible to believe that he along with others brought the dead body of Mokshed in the residence after bullock cart was sent for from the house of Hazi. He stated that he returned to his house in the “late evening” but the PW-1 in his evidence said that this Lokman was present at the time of writing Ext-1 at about 2-30 a.m. in the house of Hazi. He has, thus, supported a concocted story set up by the prosecution. He could not even confidently tell a lie before the Court.
50. PW-5 viz. Sajahan although claimed to be present at the time of incident has in cross-examination specifically stated that Mokshed Prodhan, one of the accused, was not present at the time of incident which is contrary to the case made by the other prosecution witnesses. According to him Nazrul and Habibur struck Hazi with bhojali, but no such injury was found by the doctor who conducted necropsy on the dead body of Hazi.
51. Therefore, even the alleged eye-witnesses made contradictory statements among themselves regarding the alleged incident.
52. In fine, this is a case where the prosecution by suppressing two previous information received by the police station about the murders, has projected a complaint received at 3 a.m. next day, long after the commencement of investigation, as the FIR and brought tutored witnesses to implicate the accused. The prosecution in this case did not even feel the necessity of exhibiting the postmortem report and the alleged injury report. The real first informant of the incident, viz. Hazarat Ali, though brought at the witness box was not put any question in examination-in-chief. The other informant of the incident, viz Mohammad Sk. has not been examined by the prosecution for the reason best known to it. Jasimuddin, the owner of the Hat, in our opinion, ought to have been examined in this case, as it has come in evidence that he himself used to collect toll from the shop-owners and his house was situated at the place of occurrence itself. Particularly, when specific suggestion was given to the prosecution witness that Hazi had no shop in the Hat, Jasimuddin could effectively answer the question. The prosecution did not make any search or seizure at the place where Mokshed Master allegedly died but instead of that, seizure was made in the house of Hazi where the body of Mokshed was found by the police. In the absence of any search or seizure at the place of alleged murder or even explanation why no seizure had taken place at that spot, it is impossible to believe the prosecution case that Mokshed died in the midst of the Hat within 10 cubits from the shop room of Hazi. Even the so-called FIR was received by the Sub-Divisional Judicial Magistrate on 2nd October although the same was registered at 3-45 a.m. on 29 September. The aforesaid delay supports the contention of the defence that the said complaint was not even lodged at 3 a.m. on 29 September but was manufactured subsequently. Over and above, the prosecution witnesses cannot bo believed for their contradictory statements.
53. In examination under Section 313 of the Code, the same set of questions has been put to all the accused. It is rightly contended by Mr. Dastoor, the learned Counsel appearing for the appellants in the C.R.A. No. 219 of 1985 that the questions put the appellants do not even disclose their involvement, in the incident and such omission itself is a ground to set aside conviction in C.R.A. No. 219 of 1985. (See Sharad Birdhichand Sarda v. State of Maharastra, and other decisions mentioned therein). We are not at all impressed by the submission of Mr. Ghosal, the learned Counsel appearing for the prosecution that the matter should now be remanded after the lapse of 25 years from the time of incident to remedy the defect because we have disbelieved the prosecution version altogether and the investigation is too tainted to be cured. Moreover, after the long lapse of 25 years, the accused will face difficulty in bringing witnesses in support of their defence, if they now want to give, causing prejudice to them. (See Machander v. State of Hydrabad, ).
54. The learned Sessions Judge, it appears from the order impugned, did not consider the aforesaid aspects of the matter and as such, we are unable to uphold the convictions and the sentences imposed upon the appellants in these two appeals. We, thus, set aside the conviction and the sentences. The prosecution has failed to prove that the appellants are guilty. The appellant in C.R.A. No. 245 of 1985 be immediately released from the judicial custody ii’not wanted in any other case. The appellants of the other appeal being C.R.A. No. 219 of 1985 be discharged from bail bonds immediately.
55. Appeals are thus allowed.
Arun Kumar Bhattacharya, J.
I agree.