SK. SIANAT Vs. STATE

JUDGEMENT

(1.) Convicted of an offence under sec. 302, I.P.C, and sentenced to imprisonment for life by the learned Sessions Judge, Howrah, in Sessions Trial No. IX(July) of 1983, the accused-appellant, Sk. Sianat has come up in appeal before us on the averments, inter alia, that the learned Judge erred in relying upon Ext. 5, the alleged dying declaration, that the medical evidence on the record was misread by the learned Judge in the matter of fixing up the exact nature of the weapon used by the accused, that material witnesses of the case were not examined at all by the prosecution, that blood stained earth alleged to have seized by the I.O. by some of the P.Ws. were not in fact seized and sent to the forensic expert for examination, (vide grounds Nos. III, IV, VII, X, XII and XIII of the Memo of appeal).

(2.) The prosecution case, as presented before the learned trial Judge, stood as follows. On 7/8/81 towards the evening, the victim Amanat of village Alipukur was returning back to his house after finishing his day's work at a local Mill, The distance from Alipukur to Garuhata Bridge would be about 15 minutes walk (vide cross-examination of P.W. 1). At Garuhata Bridge are situate some shops and also some huts. Garuhata Bridge is within Uluberia Sub-Division. Amanat was traversing towards Garuhata Bridge in order to make some tagid for repayment of money from P.W. 4, Sahadab. Sahadat was a local resident of Garuhata. While Amanat was passing along the kachha road by the side of Garuhata Bridge, an altercation took place in between Amanat and the accused Sk. Sianat. Pursuant to the altercation Sianat assaulted Amanat on the left side of his neck with a knife. That was a fatal blow indeed, so much so that blood was seen oozing out from the place of injury. The victim Amanat raised a hue and cry and hearing that hue and cry a good number of persons including local shop keepers and the local residents flocked to the place. Some of these witnesses saw Sianat fleeing away from the spot hurriedly with a knife in his hand and threatening the persons assembled not to interfere with his work. Before these witnesses Amanat made it clear that he was assaulted by Sianat. Some of the witnesses like P.W. 7 Sadik Ali and others then took the victim to the Sub-Divisional Hospital where he was promptly attended to by Dr. Patra (P.W. 12)- doctor of the Emergency Department. Before this doctor Amanat disclosed the name of his assailant. The Emergency doctor stitched the neck injury. By that time the son of the victim P.W. 1 Abdul Mannan came to the hospital from his house. To Mannan also the father disclosed the incident in detail including the name of his assailant. This occurred at about 9 P.M. In the meantime the local O/C P.W. 13, Rahaman in course of his round duty came to hear about the incident. The O/C came straight to the hospital where he found Abdul Mannan present. He took down the statement of Mannan. This was treated as the F.I.R. of the case (Ext. 1/1). On the basis of the aforesaid statement of Mannan, Uluberia P.S. Case. No. 8 dtd. 7/8/81 was started against Sianat under sec. 325, I.P.C. Sri Rahaman then handed over the charge of the case to P.W. 15 Gour Chandra Mondal. Sri Mondal took up the investigation of the case and proceeded towards the place of occurrence on that very night. There he examined most of the P.Ws. He searched for the accused but in vain. He was found absconding. Next day the victim was sent to Uluberia E.S.I. Hospital for better treatment. On the next date, i.e. on 9/8/81, however belying all expectations the victim breathed his last towards the morning. A.S.I. Bholanath Sen, P.W. 10, held inquest over the dead body of the victim and the dead body of the victim was thereafter sent to Uluberia Hospital for the post mortem examination. In course of investigation Sri Mondal received to injury report, the post mortem report and thereafter he completed the investigation and submitted the charge-sheet against the accused under sec. 302, I.P.C. On 3/12/81. Sk. Sianat was thereafter committed to the court of sessions. The learned Sessions Judge, Howrah, framed charge under sec. 302, I.P.C. Sianat pleaded not guilty and claimed himself to be innocent. His defence was that he was falsely implicated. Before the learned Sessions Judge as many as 15 P.Ws. including three doctors and three police officers were examined. The learned Sessions Judge considered the sworn testimony of all these witnesses and convicted and sentenced the accused in the way as already indicated.

(3.) Mr. Mukherjee, learned Advocate appearing for the appellant, invited our attention to the fact that not a single eye witnesses could be produced by the prosecution to swear on oath that he had actually seen the acts of assault alleged to have been made by Sianat, the appellant. Mr. Mukherjee continues that in a case like this where eye witnesses are totally absent, the Judge should be very much cautious before convicting a person. We have given due consideration to the aforesaid submissions of Mr. Mukherjee. True it is that no eye witness to the actual incident could be produced by the prosecution. Nevertheless we cannot brush aside the act that there are witnesses in this case who claimed to have seen the accused Sianat running with a knife in his hand immediately before the occurrence. There were also some witnesses who after the incident was over actually saw Sianat fleeing away from the spot with the offensive weapon. P.W. 4 Sahadat is one of these witness. He had built a hut at Garuhata. His evidence is that be had seen Sianat "going by the side of my house with a knife in his hand". We have carefully considered the cross-examination of this witness. There is nothing in the cross-examination to show that whatever he deposed in that expect of the matter was false. In the cross-examination there is only the indefinite and wild suggestion that he was not speaking the truth. To be more precise it was simply alleged that he was as it "stating falsely". Sahadat, P.W. 4 also made it clear in course of his deposition that there was an incident over there and he had seen Sianat abusing Amanat by standing at a place close to his shop just before the act of stabbing. Then there is the evidence of P.Ws. 6 and 7, Rouf Ali Haider and Sk. Sadeque Ali Mondal respectively, - two local shopkeepers. Both were sitting inside the tea shop of one Murshed, P.W. 3 at Garuhata Bridge. They heard about a row and hearing that both of them came to the place of occurrence which was at a distance of about 25 cubits. Both of them marked Sianat fleeing away with knife in his hand and also threatening "to assault if anybody would come near". of course both of them found Amanat lying injured on the spot.