Guiram Mondal Vs. State of West Bengal
Email[From the Judgement and Order dated 28.11.2006 of the High Court of Calcutta in G.A. No. 22 of 1987]
[From the Judgement and Order dated 28.11.2006 of the High Court of Calcutta in G.A. No. 22 of 1987]
Mr. Rupali S. Ghosh, Mr. Sanjoy Kumar Ghosh and Mr. Deba Prasad Mukherjee, Advocates for the appellant.
Mr. Chanchal Kr. Ganguli, Ms. Soumi Jundu and Mr. Avijit Bhattacharjee, Advocates for the respondent.
Criminal Procedure Code, 1973
Section 174 – Inquest report – Absence of names of accused persons in said report. Held, is of no consequence. Disbelieving the prosecution case on that ground is erroneous. Pedda Narayana’s, Amar Singh’s [JT 2003 (2) SC 1], Radha Mohan Singh’s [JT 2006 (1) SC 428] cases referred.
Section 154 – Penal Code, 1860, Sections 147, 148, 302, 323, 149 – Ante-dated and ante-timed FIR – Creation of – Accused party in unlawful assembly, armed with deadly weapons, took along ‘A’ and ‘S’ through a kuchha road at about 12 noon – Assaulted in process – Some relations tried to save, but were assaulted – Informant shot by a pipe gun and sustained injuries – While all were proceedings, ‘A’ escaped and took shelter in house of ‘M’ – Accused party came and took him away and killed him in path way – Chased ‘S’, who was left in injured condition and killed him also – Informant passed information, which was recorded at 6.05 pm, same day – Treated as FIR – Received at police station at 7.25 pm and formal FIR registered – If FIR was ante-dated and ante-timed. Held that there is nothing to show if FIR was ante-dated or ante-timed. Merely because FIR was placed before Magistrate after 3 days, it cannot be called ante-timed or anti-dated or fabricated. S. Mohan Singh’s [JT 2006 (3) SC 452] case relied upon.
Evidence Act, 1872
Section 3 – Penal Code, 1860, Sections 147, 148, 302, 323, 149 – Related witness – Reliance – Murder case – All eye-witnesses, relatives – No independent witness – But one witness was not even related. Held that merely because a person is related, is no reason to discard his evidence. Such evidence can be acted upon if it is found reliable and trustworthy. Case law referred.
Ed.: In this case, the order of Trial Court, acquitting the accused, was reversed by High Court against which appeal was filed. Same was dismissed by Supreme Court.
The inquest report normally would not contain the manner in which the incident took place or the names of eye-witnesses as well as names of accused persons. The basic purpose of holding an inquest is to report regarding the cause of death, namely whether it is suicidal, homicidal, accidental etc. Inquest is concerned with discovering whether in a given case the death was accident, suicidal or homicidal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. The details of overt acts need not be recorded in the inquest report. The manner and approach of the trial court in disbelieving the prosecution story by placing reliance on the inquest report was erroneous and bad in law. (Para 10)
The verbal submission of PW 1 was reduced into writing by PW 15 and the same was treated as the FIR (Ext.3). The formal FIR was marked ext.3/3. Those documents would clearly indicate that the incident took place on 26.4.1984 at about 12 hrs and the FIR was recorded at village Pechaliya at 6.05 PM and after it was sent to the Khairasole police station which was registered as Khairasole P.S. Case No.10 dated 26.4.1984 at 7.25 P.M. There is nothing to show that the FIR was anti dated, anti timed or fabricated. Merely because the FIR was placed before the learned Magistrate on 30.4.1984, three days after registration of FIR, it cannot be said that the FIR was anti timed, anti dated and fabricated. (Para 11)
Merely because a witness is a relative of the deceased is not a reason for discarding his evidence. Many a time, strangers will not come forward depose as witnesses, even if they have witnessed the crime. Further, possibility of influencing such witnesses is also not uncommon. Evidence of relatives can be acted upon if the court finds that the evidence of such a witness is reliable and trustworthy. (Para 13)
PW2, Monohar @ Manu Mondal, it may be noted, was not a relative of Amrita Dome. A close scrutiny of the evidence rendered by the eye-witnesses, some of which are relative of the deceased, clearly establishes the involvement of the accused. Further, in the cross examination of the eye witnesses, we have not noticed any serious contradiction, omission, infirmity, defect or lacuna which can make their evidence unbelievable and to make them untrustworthy witnesses. Further, the evidence of eye-witnesses have been fully corroborated by the evidence of PW 12, the autopsy surgeon relating to the nature of injuries and places of injuries on the person of the deceased. (Para 14)
2. Radha Mohan Singh @ Lal Saheb and Others v. State of U.P. [JT 2006 (1) SC 428] (referred) (Para 10)
3. Seeman @ Veeranam v. State by Inspector of Police [JT 2005 (5) SC 555] (Para 13)
4. Visveswaran v. State represented by SDM [JT 2003 (4) SC 367] (Para 13)
5. Amar Singh v. Balwinder Singh and Others [JT 2003 (2) SC 1] (referred) (Para 10)
6. Alamgir v. State (NCT, Delhi) [JT 2002 (9) SC 347] (Para 13)
7. State of U.P. v. Jodha Singh and Others [JT 1989 (3) SC 112] (Para 13)
8. Dalbir Kaur and Others v. State of Punjab [1976 (4) SCC 158] (Para 13)
9. Labh Singh and Others v. State of Punjab [1976 (1) SCC 181] (Para 13)
10. Pedda Narayana and others v. State of Andhra Pradesh [1975 (4) SCC 153] (referred) (Para 10)
1. The appellant, the 10th accused in Sessions Case No.20 of 1986, was charge-sheeted along with others for the offences punishable under Section 147, 148, 149, 323 and 302 of the Indian Penal Code and Section 25/27 of the Arms Act. The Trial Court, after appreciation of the oral and documentary evidence vide its judgment dated 22.4.1987 acquitted all the accused persons, except Accused No.3 Tarun Mondal, who was convicted for the offences punishable under Section 148 and 302 of IPC for causing the murder of Amrita Dome and sentenced him to suffer imprisonment for life under Section 302 IPC.
2. The State of West Bengal, aggrieved by the order of acquittal, preferred G.A. No.22 of 1987 before the High Court of Calcutta. The High Court vide its judgment dated 28.11.2006 partly allowed the appeal and convicted the appellant along with four others, while maintaining the order of acquittal passed by the trial Court, in respect of rest of the accused persons. Tarun Mondal, 3rd accused, was further found guilty of the murder of Sultan Khan.
3. We are, in this case, concerned only with the appeal filed by Guiram Mondal, 10th accused. The prosecution case, in short, is that on 26.4.1984 at about 12 hours the accused persons formed an unlawful assembly with deadly weapons and took along with them Amrita Dome and Sultan Khan through a kuchha road in village Pechaliya and, in the process, assaulted both Amrita Dome and Sultan Khan. Some of the witnesses, who are relatives of the deceased Amrita Dome, tried to save him but they were also assaulted by the accused persons and the informant Sadananda Dome (PW1) was shot at by a pipe-gun and he sustained injuries. While the accused persons were proceeding as such, Amrita Dome managed to escape from their clutches and took shelter in the house of Monohar Mondal @ Manu Mondal (PW2). The accused persons, however, chased Amrita Dome and brought him out of the house of Manu Mondal and killed him in the passage or pathway lying between the house of Manu Mondal and his nephew Sahadeb Mondal. Accused persons after murdering Amrita Dome left the spot to chase Sultan Khan, who was left injured in front of Durga temple which was close to the house of Monohar Mondal. Sultan Khan was also murdered by them and they carried away his death body to the grazing field and left it there.
4. Sadananda Dome (PW1) then passed this information, which was recorded in writing by PW 15 on 26.4.1984 at 6.05 PM and the same was treated as the FIR. The same was sent to the police station and was received there at 7.25 PM and on the basis of that FIR a case was registered against the accused persons and they were charge-sheeted for the offences, already mentioned earlier. PW 15, the Investigating Officer visited the place of occurrence and prepared the sketch map and conducted the inquest in the presence of PW 10, the Pradhan of the Gram Panchayat and sent both the dead bodies for post-mortem examination through constable PW 13.
5. PW 12 Dr. S. Nath, conducted the post-mortem on both the dead bodies and opined that the death was due to effect of head injury and associated injuries which were anti mortem and homicidal in nature. PW 15 on 13.5.1984 arrested various accused persons including the appellant and were brought before the trial court. On the side of the prosecution 16 witnesses were examined. PW 1 Sadananda Dome, the first informant is the brother of the deceased Amrita Dome. Monohar Mondal, in whose house the deceased Amrita Dome took shelter, was examined as PW2. Menoka Dome, wife of deceased Amrita Dome, was also examined as PW 3 and Sankar Dome, the father of the deceased Amrita Dome was also examined as PW 5. On the side of the defence, Joydev Garian DW1 was examined.
6. Dr. S. Nath was examined as PW12, who conducted the post-mortem on the dead bodies on 27.4.1984 deposed that on the dead body of Amrita Dome he found (1) one incised wound on right lateral aspect of forehead 2.5 x 2 x .5 (2) one incised wound in mid-region of forehead 3 x 2 x .5 (3) one incised would 3 below the midpoint of chin 4 x 2 x 2.5 larynx and trachea cut off. He also noticed fracture of 4th, 5th ^ 6th ribs on the right side (2) fracture of 4th and 5th ribs on the right side (3) right lung was found ruptured. Further, it was also noticed a fracture of frontal bone. PW 12 has opined that the death was due to the effects of head injury and associated injury was ante mortem and homicidal in nature. PW12 conducted the post-mortem over the dead body of Sultan Khan and found (1) one incised would 3 x 2 x 1 on back portion of head (2) one incised would on left lateral aspect of neck 2 x 1.5 x 1 and (3) one incised would 4 x 3 x 5 x4 aspect of neck 2 x 1.5 x 1. He also found fracture of 4th, 5th, 6th and 7th rib of the right side and fracture of 4th, 5th and 6th ribs of the left side. He found fracture of occipital bone and both the lungs were ruptured. In his opinion, death was due to head injury and associated injury ante mortem and homicidal in nature.
7. PW 1, the brother of the deceased Amrita Dome, who is also an injured witness, had clearly and unequivocally supported the prosecution case and stated that he had seen the accused persons armed with deadly weapons like bhojali, axe, pipe gun and dragger etc. catching hold of his brother Amrita Dome and one Sultan Khan. Amrita Dome had managed to escape from the clutches of the accused persons and took shelter in the house of Monohar Mondal. PW1 also deposed that Sultan Khan in that process was half dead and lying in front of Durga Temple. PW 1 deposed that the accused persons took Amrita Dome out of the house of Monohar Mondal and assaulted with lathi, dagger, bhojali etc. PW 1 stated that he tried to save his elder brother but was shot at by a pipe-gun which caused injury on his shoulder. PW 1 also noticed that Kristo Gorain cut the throat of Sultan Khan and thereafter brought Sultan Khan to a grazing field and left the body there.
8. We have also gone through the evidence of the eye-witnesses PWs 2, 3, 4, 8 and 11 and their versions corroborate fully the version of PW 1, the first informant and eye-witness, relating to the incident of assault and murder of Amrita Dome and Sultan Khan. The specific part played by the various accused persons, including the appellant, has been narrated by those witnesses. PW 2 had deposed that on the date of the incident he was in the cow-shed and as soon as he heard a hue and cry, he came out and found that some persons, including the appellant, forcibly taking away Amrita Dome from the house of Manu Mondal. PW 2 had also requested the accused persons to not to assault Amrita Dome but was pushed away by the accused persons. Later he found Amrita Dome dead and the body was lying on the path-way between his house and the house of Sadananda Mondal.
9. PW 3, the wife of Amrita Dome, also fully supported the prosecution case and also PW8, the mother of the deceased Amrita Dome and P.W.11, the wife of the brother of the deceased. The High Court has correctly appreciated the evidence rendered by those witnesses. The High Court after examining the oral and documentary evidence came to the conclusion that the trial court was completely in error by over-looking some crucial and important evidence and placed much reliance on non-mention of name of accused persons in the inquest report. The High Court, in our view, correctly applied the legal principle that non-mention of name of the few accused persons in the inquest report is of no consequence.
10. The inquest report normally would not contain the manner in which the incident took place or the names of eye-witnesses as well as names of accused persons. The basic purpose of holding an inquest is to report regarding the cause of death, namely whether it is suicidal, homicidal, accidental etc. Reference may be made to the Judgment of this Court in Pedda Narayana and others v. State of Andhra Pradesh [1975 (4) SCC 153] and Amar Singh v. Balwinder Singh and Others [2003 (2) SCC 518]. In Radha Mohan Singh @ Lal Saheb and Others v. State of U.P. [2006 (2) SCC 450], this Court held that the scope of inquest is limited and is confined to ascertainment of apparent cause of death. Inquest is concerned with discovering whether in a given case the death was accident, suicidal or homicidal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. The details of overt acts need not be recorded in the inquest report. The High Court has rightly held that the manner and approach of the trial court in disbelieving the prosecution story by placing reliance on the inquest report was erroneous and bad in law.
11. We also fully agree with the views expressed by the High Court that the FIR was not anti dated, anti timed or was subsequently created. The verbal submission of PW 1 was reduced into writing by PW 15 and the same was treated as the FIR (Ext.3). The formal FIR was marked ext.3/3. Those documents would clearly indicate that the incident took place on 26.4.1984 at about 12 hrs and the FIR was recorded at village Pechaliya at 6.05 PM and after it was sent to the Khairasole police station which was registered as Khairasole P.S. Case No.10 dated 26.4.1984 at 7.25 P.M. There is nothing to show that the FIR was anti dated, anti timed or fabricated. Merely because the FIR was placed before the learned Magistrate on 30.4.1984, three days after registration of FIR, it cannot be said that the FIR was anti timed, anti dated and fabricated. In fact, no question was put to the Investigating Officer as to the cause of delay in sending FIR to the Magistrate.
12. This Court in State of Jammu and Kashmir v. S. Mohan Singh and Another [2006 (9) SCC 272] held that the mere delay in sending the First Information Report to a Magistrate cannot be a ground to throw out prosecution case if the evidence adduced is otherwise found credible and trustworthy. We are of the view that the High Court has rightly held that there is no reason to hold that the FIR was a fabricated document or ante-dated or ante-timed.
13. We are also not impressed by the argument of Ms. Rupali S Ghose, learned counsel appearing for the appellant, that not much reliance could be placed on the evidence of eye-witnesses as most of them are relatives of Amrita Dome and not a single independent witness was examined by the prosecution. In our view, merely because a witness is a relative of the deceased is not a reason for discarding his evidence. Many a time, strangers will not come forward depose as witnesses, even if they have witnessed the crime. Further, possibility of influencing such witnesses is also not uncommon. Evidence of relatives can be acted upon if the court finds that the evidence of such a witness is reliable and trustworthy. In this connection reference may be made to the Judgments of this Court in Seeman @ Veeranam v. State by Inspector of Police [2005 (11) SCC 142], Alamgir v. State (NCT, Delhi) [2003 (1) SCC 21], Dalbir Kaur and Others v. State of Punjab [1976 (4) SCC 158], State of U.P. v. Jodha Singh and Others [1989 (3) SCC 465], Labh Singh and Others v. State of Punjab [1976 (1) SCC 181], Visveswaran v. State represented by SDM [2003 (6) SCC 73].
14. PW2, Monohar @ Manu Mondal, it may be noted, was not a relative of Amrita Dome. A close scrutiny of the evidence rendered by the eye-witnesses, some of which are relative of the deceased, clearly establishes the involvement of the accused. Further, in the cross examination of the eye witnesses, we have not noticed any serious contradiction, omission, infirmity, defect or lacuna which can make their evidence unbelievable and to make them untrustworthy witnesses. Further, the evidence of eye-witnesses have been fully corroborated by the evidence of PW 12, the autopsy surgeon relating to the nature of injuries and places of injuries on the person of the deceased. We notice that, earlier, the appeal was filed by Guiram Mondal along with Kisto Gorain and Madhusudan Mondal. Appeal was initially dismissed on 17.9.2007 since they had not complied with the orders of this Court dated 19.4.2007 for surrendering. Later, the appellant herein was arrested and his case was restored on
28.11.2008 by this Court.
15. Considering the totality of the evidence and circumstances of the case, we are of the view that the High Court has rightly reversed the judgment of the trial court after finding the appellant guilty under Section 302 read with Section 148 of IPC for the murder of Amrita Dome and awarded the sentence of life imprisonment. We, therefore, find no reason to interfere with the judgment of the High Court. The appeal lacks merit and the same is dismissed.
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