BECHARA KORA MUDI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgment and order of conviction under S. 302 read with S. 34, IPC and the sentence of R.I. for life and also to a fine of Rs. 1000/- each in default R.I. for a further period of one year, imposed upon all the five appellants/accused here.

(2.) In a nutshell, the prosecution case is that on 16-2-87 at about 4 p.m. the informant Mijanur Rahaman (P.W. 1) got the information from Labanu Barman (P.W. 6) that his father Saifur Rahaman had been murdered by the appellants/accused. Getting that information, the informant rushed to the spot that is to say the field within the Mouza Haridas under P.S. Gazole accompanied by some of his co-villagers and found that his father was lying dead on the field. The informant noticed that the victim had bleeding injury on the head. It was further alleged in the FIR that there was a long standing dispute over some land between the accused persons and the victim and there was also litigation over such dispute and for that reason the victim was killed by the accused persons. It was further noted in the FIR that from the spot, the informant had been to the house of the accused persons, but none of the accused was available in the house. Thereafter, the informant came to the P.S. to lodge the information. On the basis of the FIR, O.C. Gazole P.S. started a case and the same was endorsed to P.W. 18, Nirmal Chandra Bhattacharjee for investigation. The I.O., after taking up investigation visited the P.O., found the deadbody of the victim there, held inquest on such deadbody in presence of the witnesses and thereafter sent the deadbody of the victim to the morgue with the original inquest report through a constable. he seized controlled earth and wearing apparels of the deceased by preparing seizure lists in presence of witnesses. He examined the witnesses recorded their statements and tried to arrest the appellants/accused but could not succeed as they were not available in the house. Later on appellants/accused surrendered before the Court. The witness collected P.M. report and on completion of the investigation submitted chargesheet. On considerations of the materials on record, the learned Additional Sessions Judge raised charge under S. 302 read with 34, IPC against all the appellants/accused. They pleaded not guilty to such charge and in this way the trial proceeded. In course of the trial, the prosecution examined in all 18 witnesses. Amongst the prosecution witnesses P.W. 6 Labanu Barman alone is an eye-witness. There was of course another person who according to P.W. 6 was present at the spot but that person, namely, Bhutia Mudi was dead before the trial started. It is an admitted position that the other witnesses who came to corroborate the evidence of P.W. 6 heard all about the incident from the witness P.W. 6. In this category there is the evidence of P.W. 1, Md. Mijanur Rahaman, the informant, P.W. 4 Mujibar Rahaman, P.W. 5 Fazlur Rahaman, P.W. 9 Samsunahar Bini. P.W. 10 Sonaram Mudi is the grand son of the other deceased, eye-witness Bhutia Mudi. His evidence indicated that he was a witness just after the incident and coming out of his house he found the appellants/accused to run away from the spot. P.W. 2, Md. Maijur Rahaman and P.W. 12 Pratap Chandra Pal were seizure list witnesses, the former witnessed, the seizure of wearing apparels of the victim, P.W. 3 Golam Akibar Hossain, P.W. 7 Erfan Mian, P.W. 8 Moklesur Rahaman, P.W. 11 Toffazal Hossain were tendered from the side of the prosecution for the purpose of cross-examination and no cross-examination was done from the side of the defence in respect of any of such witnesses. P.W. 13, S.I., T. K. Banerjee at the relevant point of time was O.C., Gazole P.S. who on receipt of the formal FIR filled up the same and started the case and endorsed the case to P.W. 18 N.C. Bhattacharjee, I.O. of the case. Besides these two witnesses, there were other police witness like P.W. 14 P.M. Sarkar who as a constable attached to Gazole P.S. took the deadbody to the morgue attached to the district hospital at Malda. P.W. 16, S.S. Ghatak, who at the relevant point of time was S.I. Gazole P.S. and who was a witness to seizure of wearing apparel on the basis of a seizure list, P.W. 17 Bimalendu Sarkar who at the relevant point of time was A.S.I., Gazole P.S. He was a seizure list witness. Besides these formal witnesses there is the evidence of P.W. 15 Dr. D.P. Chatterjee, who at the relevant point of time was M.O. Blood Bank Malda and who in connection with Gazole P.S. Case No. 9 dated 16-2-87 held P.M. examination over the deadbody of the victim.

(3.) Labanu Barman (P.W. 6), the only eye-witness stated in his evidence that he used to know the deceased Saifur as his co-villager. Further indicated in the evidence that the witness was a resident of Durgapur and victim Saifur was a resident of Rahimpur. He specifically stated that those two villages were contiguous to each other. It was the further evidence of Labanu that on the date of the incident that is to say 3rd Falgun he had been to the village Haridas to attend an invitation in the house of Akshay Barman. At about 4.45 to 5 p.m. he came out of the hose of Akshay, hearing hue and cry and found that appellants, namely, Bechara, Sitaram, Lakhiram, Hariram and Patiram encircled the victim Saifur Rahaman in the paddy field of Rabi Mudi. Thereafter, he found accused Lakhiram struck a blow on the head of Saifur from his behind with spade and then all of the accused ran away to the west of the field. In the cross-examination, the witness stated that the distance of his house and the house of Akshay was about a mile. He also disclosed that there was a locality between his house and the house of Mizanur at Rahimpur but he did not meet anybody before meeting Mizanur (P.W. 1). At the same time he further stated that reaching the locality he met many persons. He further disclosed that Akshay Barman to whose house he had been to attend a social ceremony was dead when the witness came to depose. His evidence further indicated that he narrated the incident to the informant and also to the elder brother of the victim. There is no suggestion from the side of the defence, why the evidence of this eye-witness should not be accepted. Only thing which can be said to criticise the oral testimony of P.W. 6 was that he was not a person, coming from that locality where the offence complained of took place. But this should not detain us for long, as it would be seen that the presence of P.W. 6 in a neighbouring house at the relevant time was not disputed. In this way it transpires that the evidence of P.W. 6, the only eye-witness, clearly implicated all the appellants/accused with the offence complained of, and such evidence gets corroboration from the evidence of some other witnesses, to whom either this witness or another eye-witness who died before the trial proceeded, reported the incident.