(Uday Umesh Lalit and Ashok Bhushan, JJ.)
Criminal Appeal No(s). 1039/2007
Rojina Begam _____________________________________ Appellant
v.
Firoz Munshi & Ors. ____________________________ Respondent(s)
With
Criminal Appeal No. 302/2018
Rojina Begam _____________________________________ Appellant
v.
Kamal Sk & Ors. _______________________________ Respondent(s)
Criminal Appeal No(s). 1039/2007 and Criminal Appeal No. 302/2018, decided on September 13, 2018
The Order of the court was delivered by
Order
1. The informant is in appeal in these two matters challenging acquittal of 10 accused persons. Criminal Appeal No. 1039 of 2007 is directed against the judgment and order dated 07.09.2005 passed by the High Court of Calcutta in Criminal Appeal No. 534 of 2001 acquitting 04 accused namely, Firoz Munshi(A-9), Galai Kazi @ Fazle Rahman(A-1), Muktar SK @ Rafiqe Islam(A-7) & Milon SK @ Jamal Islam while the other Criminal Appeal No. 302 of 2018 is directed against the order dated 17.06.2016 passed by the High Court of Calcutta in Criminal Revision No. 18 of 2002 confirming the acquittal of 06 other accused namely, Kamal SK(A-21), Khoke SK(A-4), Hasibur Rahaman @ Titu SK(A-1), (4) Samsul Alam @ Firoj SK(A-2), Jamir SK @ Hussain (A-3) and Dablu SK @ Dabu(A-11).
2. The crime in the present case was registered pursuant to the First Information Report lodged by the informant/appellant at about 09.45 a.m. on 22.12.1999. It was stated that while the husband of the informant/appellant namely, Golap SK @ Samirul Islam (herein after referred to as “the deceased”) was returning at about 07.00 p.m after watering paddy fields along with his elder daughter, the accused persons encircled the deceased and started hurling bombs at him. He, therefore, sustained injuries on his back side and fell down. While he had so fallen down, he was also assaulted with fire arms. It was stated that one Mongal SK s/o late Budhu SK wanted to save the deceased but he was also seriously injured by the bombs of the miscreants. The First Information Report (FIR) thus referred to the presence of the elder daughter of the deceased and Mongal. Relevant to mention that this FIR was scribed by Jewel Munshi who was later examined as PW-2 in the trial.
3. During the course of investigation, statements of various witnesses were recorded including the statements under Section 164 Cr.P.C. of two daughters of the informant/appellant who were later examined as PW-6 and PW-7. The statement of Mongal was also recorded. Medical evidence was in the form of injury certificate recording the injuries suffered by Mongal and the post-mortem undertaken on the body of the deceased.
4. After due investigation, the charge sheet was filed against 21 accused persons out of which 11 were stated to be absconding. The rest 10 accused persons were sent for trial and were tried by the Additional Sessions Judge, Katwa in Sessions Trial No. 22 of 2000 for the offences punishable under Sections 148/302/307/149 of the Indian Penal Code, 1860 (IPC for short) and 9-B(1)(b) of the Indian Explosives Act. The prosecution principally relied upon the testimonies of PWs-2, 4, 6, 7 and 16 who were stated to be the eye-witnesses to the occurrence. The medical evidence was unfolded through the testimony of PW-18 Dr. N.D. Chatterjee and PW-20 Dr. Debkumar De. PW-18 Dr. Chatterjee deposed to the aspect of injuries suffered by Mongal SK while PW-20 Dr. De deposed about the post mortem undertaken by him on the dead body of the deceased. According to PW-18 Dr. Chatterjee who had treated Mongal SK there was an open wound over the left thigh extending up to left knee and he found the injury to be from bomb blast. PW-18 Dr. Chatterjee further stated that the said Mongal SK was admitted at Burdwan Medical College and Hospital from 11.12.1999 to 23.03.2000. PW-20 Dr. De who conducted the post-mortem found the following external injuries on the dead body of the deceased:
“1) Whole body was stained with blood.
2) About 50% of the buttock – size 6? × 6? × bone deep is grossly lacerated and missing from the body by some blast.
3) The corresponding clothes are partly burnt and skin around the buttock is blanched.
4) On the skull the occipital region grossly lacerated and missing with expulsion of brain matters.
5) Majority part of skull is fractured.
6) The part of occipital region, the hair is blanched and partly burnt.
Except the above no other external injuries were detected on the person of the deceased.
Wounds stated in the above no. 4 injury-size 5? × 4? × bone deep.
1. Injury No. 2, as stated before, caused by heavy blast.
2. Injury No. 4 as stated above – caused by fire arm and the shot passes obliquely.
3. Cause of the fracture of the skull produced by blunt trauma and partly by blast.
4. All the wounds are freshly inflicted and homicidal in nature.”
5. He further stated in his deposition, “….Injury nos. 2, 3, 5 and 6 which I saw above (External) may be caused by throwing bombs. Injury No. 4 (External) may also be caused if any one by pushing barrel of his gun inside the mouth of a person who raised his mouth on kneeling condition, fired. In the above case wound of entry will not be found. In this case also the exit of the wound will not be found. As in this case the occipital region is missing and grossly lacerated, that should be taken as wound of exit. The cumulative effect of all such bodily injuries which I found are sufficient in the ordinary course of nature to cause death”.
6. The manner in which the deceased suffered fire arms injury was deposed to by Mongal SK (PW-16) as under:
“I was then watching the incident. I had a Gamchha on my head. I wetted that Gamchha in a pond and was proceeding to Golap in order to give water to him. As and when I was proceeding to give water Firoz Munshi then pushed the barrel of the gun inside the mouth of Golap and fired. As and when I was proceeding towards Golap SK. For giving water, 4/5 persons hurled bombs aiming at me. Those who had bombs in their hands, hurled bombs aiming at me. Milan SK, Muktar SK, Babloo SK, Gulai Kazi, had bombs in their hands. I sustained bomb injury on my left knee and thigh, back side. As a result of sustaining injury I became senseless. Out of grudge as I was proceeding for giving water to Golap SK, they hurled bomb towards me.”
7. The statements of two prosecution witnesses namely, Mongal SK (PW-16) and Samina Parvin (PW-6) are quite consistent that the deceased was initially encircled and bombs were hurled at him; that as he had fallen down he was asking for water at which stage Mongal SK (PW-16) wanted to come to the rescue of the deceased; that at this juncture Mongal SK was also subjected to assault and bombs were hurled at him; and that the barrel of the gun was inserted in the mouth of the deceased and he was shot. The statements of these two witnesses are well corroborated by medical evidence on record.
8. It is true that the presence of other witnesses who are stated to be eye-witnesses was not specifically referred to in the first information statement. However, the other witnesses namely, PW-2(Jewel Munshi), PW-4(Tusu SK) and PW-7 (Ruksona Parvin) can certainly be relied upon to render further corroboration to the basic testimony unfolded by PW-6 and PW-16.
9. Considering the nature of evidence on record, the Trial Court vide its judgment and order dated 19.10.2001 and 20.10.2001 in the aforesaid Sessions Trial No. 22 of 2000 convicted accused Firoj Munshi @ Munshi Faruk Azam @ Munshi Firoj for the offence under Section 302 IPC and sentenced him to suffer life imprisonment. The other accused persons were acquitted of the charges under Section 302 read with Section 149 of the IPC. However, accused Galai Kazi @ Kazi Fazle Rahman, Muktar SK @ Rafique Islam and Milan SK @ Jamal Islam were held guilty of the offence under Section 326 IPC and were sentenced to suffer 08 years rigorous imprisonment. Rest of the accused were acquitted of all the charges leveled against them.
10. The convicted accused namely, Firoj Munshi, Galai Kazi @ Kazi Fazle Rahman, Muktar SK @ Rafique Islam and Milan SK @ Jamal Islam challenged their conviction and sentence by filing Criminal Appeal No. 534 of 2001. According to the High Court, the prosecution had failed to establish its case against Firoj Munshi, Galai Kazi @ Kazi Fazle Rahman, Muktar SK @ Rafique Islam and Milan SK @ Jamal Islam. The High Court, therefore, by its judgment and order dated 07.09.2015 acquitted them of all the charges leveled against them. The High Court took the view that the prosecution case suffered from various infirmities and there was a deliberate attempt to suppress the facts. While dealing with the evidence, the High Court found that PW-16 Mongal SK was an important witness and stated as under:
“The notable witness for the prosecution was PW-16 Mongal SK. It was alleged that Mongal SK suffered grievous hurt as a result of hurling of bombs when he made a futile bid to protect Golap SK.”
11. However, the testimony of Mongal SK (PW-16) was not dealt with in detail at all.
12. It must be stated that the acquittal of six accused persons namely, Kamal SK, Khoke SK @ Sd. Hussain, Hasibur Rahaman @ Titu SK, Samsul Alam @ Firoj SK, Jamir SK @ Hussain and Dablu SK @ Dabu was challenged by the informant/appellant by filing Criminal Revision No. 18 of 2002. Said revision was pending at the time when the appeal of 04 other accused persons challenging their conviction and sentence was considered by the High Court. This revision was, however, taken up for hearing later and vide its order dated 17.06.2016 the High Court dismissed the said revision by a non-speaking order.
13. In these appeals, we heard Mr. Ranji Thomas, learned senior counsel appearing on behalf of the informant/appellant. We also heard Mr. A.K. Ganguli, learned senior counsel appearing on behalf of the respondents/accused in Criminal Appeal No. 1039 of 2007 and learned counsel appearing for the State of West Bengal in both matters.
14. We are conscious that we are dealing with an appeal against acquittal. The law on the point is well settled. We have, therefore, carefully considered the reasons which weighed with the High Court and, in our view, said reasons are incorrect and completely against the record.
15. In this case, PW-16 was a person who suffered injuries in the transaction, was hospitalized for three months and going by the nature of his injuries had certainly suffered a bomb attack. His presence was beyond any doubt. The evidence of such an important witness was not dealt with by the High Court at all. All that the High Court dealt with the testimony of PW-16 was only from the standpoint of considering it apropos the depositions given by PW-6 and PW-7. Such an approach, in our considered view, was completely incorrect. The name of PW-16 was referred to in the FIR. He was injured in the transaction. Therefore, the matter ought to have been considered in completely different perspective and his evidence ought to have been given due weightage. Similarly the name of PW-6 also stood referred to in the FIR. The version given by these two witnesses was consistent, cogent and well supported by medical evidence. Certain inconsistencies between the statements of other witnesses namely, PW-2, PW-7 and PW-4 ought not to have diminished the value of the statements of PW-4 and PW-16 and affected the case of the prosecution.
16. After going through the entire record, we find that the approach of the High Court was not quite correct and the assessment made by it was completely flawed. According to us, the evidence led by the prosecution was crystal clear and trustworthy and the case having been established, four accused persons were rightly found guilty by the Trial Court. We have, therefore, no hesitation in allowing the appeal preferred by the informant/appellant insofar as the acquittal of four accused persons in Criminal Appeal No. 1039 of 2007 is concerned. We set aside the judgment of the High Court and restore the judgment that was passed by the Trial Court.
17. Insofar as Criminal Appeal No. 302 of 2018 is concerned, we are in agreement with the view taken by the High Court. We do not see any reason to upset the findings of acquittal rendered in their favour. The order passed by the High Court may be a non-speaking one but the facts on record do not justify any interference with such findings of acquittal. We, therefore, dismiss Criminal Appeal NO. 302 of 2018.
18. In the result, the acquittal of Firoj Munshi, Galai Kazi @ Kazi Fazle Rahman, Muktar SK @ Rafique Islam and Milan SK @ Jamal Islam is set aside and their conviction and sentence as recorded by the Trial Court vide its judgment and order dated 19.10.2001 and 20.10.2001 in Sessions Case No. 31/Sessions Trial No. 22 of 2000 is restored. All these accused persons shall surrender within three weeks from today failing which they shall be taken into custody forthwith to undergo the remaining sentence. A copy of this order shall be transmitted to the concerned jurisdictional Chief Judicial Magistrate and the Police Station for compliance. Criminal Appeal No. 1039 of 2007 is accordingly allowed.
19. One disturbing feature which we have noticed in the matter is that the acquittal rendered by the Trial Court insofar as 09 accused persons were concerned, who were charged for the offence punishable under Section 302/149 IPC, was never challenged by the State. The burden was entirely left with the informant/appellant. The State must be vigilant in such matters and ought to have taken proper steps in this behalf.
20. Before we part, we must also note that 11 accused persons, who were initially absconding, are now being tried after they have been apprehended. However, their trial is still at a standstill since the entire record is presently with this Court. We direct the Registry to send the record immediately to the concerned Trial Court and also direct the Trial Court to take up the trial as expeditiously as possible.
Criminal Appeal No(s). 1039/2007
Rojina Begam _____________________________________ Appellant
v.
Firoz Munshi & Ors ______________________________ Respondent(s)
(and IA No. 115011/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS)
WITH
Crl.A. No. 302/2018 (II-B)
(IA No. 19812/2018-CONDONATION OF DELAY IN FILING)
Date : 13-09-2018 These appeals wer called on for hearing today.
(Before Uday Umesh Lalit and Ashok Bhushan, JJ.)
For Appellant(s) Mr. Ranji Thomas, Sr. Adv.
Mr. V. N. Raghupathy, AOR
Md. Apzal Ansari, Adv.
Mr. Pavikshit P. Angadi, Adv.
For Respondent(s) Mr. A.K. Ganguli, Sr. Adv.
Mr. S.C. Ghosh, Adv.
Mr. Vikram Hegde, Adv.
Mr. Anurag Rana, Adv.
Ms. Nandini Sen Mukherjee, AOR
Mr. Satish Vig, AOR
Mr. Anurag Pandey, AOR
Ms. Reena Pandey, Adv.
Ms. Nandini Sen, AOR
Mr. Suhaan Mukerji, Adv.
Ms. Astha Sharma, Adv.
Mr. Abhishek Manchanda, Adv.
Ms. Dimple Nagpal, Adv.
M/S. PLR Chambers And Co., AOR
UPON hearing the counsel the Court made the following
ORDER
21. Criminal Appeal No. 1039/2007 is allowed and Criminal Appeal No. 302 of 2018 is dismissed in terms of the signed order.
22. Pending application(s), if any, stands disposed of accordingly.
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