CRA No. 682 of 2010. Case: Golam Sarwar Vs State of West Bengal. High Court of Calcutta (India)
| Case Number | CRA No. 682 of 2010 |
| Counsel | For Appellant: Sudipto Moitro, Rajitlal Moitra, Vijay Barma, Biplob Das, Biswajit Manna, Bikash Ranjan Bhattacharya, Rabi Sankar Chatto-padhyay, Uday Sankar Chattopadhyay, Suman Sankar Chattopadhyay, Santanu Maji, Biswajit Manna, Advs. and For Respondents: Manjit Singh, learned Public Prosecutor, Anand Keshari, Antarikshya Basu, Pawan Kumar ... |
| Judges | Nishita Mhatre, J. and Subrata Talukdar, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 154, 313; Evidence Act (1 of 1872) - Section 3; Indian Penal Code (45 of 1860) - Sections 149, 300 |
| Citation | 2015 CriLJ 1789 |
| Judgement Date | May 16, 2014 |
| Court | High Court of Calcutta (India) |
Judgment:
Nishita Mhatre, J.
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The present appeal arises from the judgment and order of the Additional Sessions Judge, 1st Court, Suri, Birbhum, in Sessions Case No. 70 of 2000 decided on 11th November, 2010.
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Eighty one persons were charged for having committed offences under Sections 147, 148, 149, 326, 307, 302, 120B, I.P.C. and Section 9B(2) of the Indian Explosives Act. Seventy six persons were committed for trial on 16th September, 2002. One of the accused was arrested later and he was tried along with the other seventy six accused. The Sessions Court, by its judgment, has convicted 44 of the accused under Section 302 read with Section 149 of the IPC. They have been sentenced to life imprisonment and a fine of `5000/- (Rupees five thousand only) and in default of payment of such fine, six months rigorous imprisonment for each offence. They have also been sentenced to suffer imprisonment for three years and a fine of `1000/- (Rupees one thousand only) for the offence under Section 148, I.P.C. The other accused have been acquitted.
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Ghastly and vicious crimes have been committed in this case where 11 persons have been murdered. Before proceeding with the matter, it is necessary to mention here that investigation conducted in this case was abysmal reflecting an alarming state of affairs where the police did their utmost to ensure that the perpetrators of the crime went scot free. Statements of all the witnesses have not been recorded by the police. There is no seizure of the weapons used in the assault, nor of any other relevant articles. This is the sorry situation although there were three Investigation Officers who handled this case consecutively. The careless, perfunctory and lackadaisical investigation reflects a sad story and is a telling comment on the role of the police in this case. In spite of all these shortcomings this Court has attempted to sift the grain from the chaff in order to ascertain the truth of the prosecution case.
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The story of the prosecution in brief is that on 27th July, 2000 at about 6 or 6.30 a.m. one Sk. Safique was driving a tractor from his village Purandarpur to Suchpur. When he was proceeding alongside the land of one Bacchu Miya and Babu Miya in his tractor, a large number of people armed with weapons like tangis, spears, muskets, bombs and rifles suddenly attacked him. Supporters of the Trinamool Congress (hereinafter referred to as 'T.M.C') party who were working in the adjacent fields came running to his rescue. The miscreants attacked those persons with sharp weapons. They dragged Sk. Safique and those who came to his aid to Suchpur Club, while continuously beating and assaulting them. These persons were dragged out, one at a time, from the club room and killed mercilessly by assaulting them with fire-arms, bombs, muskets, sticks and tangis. The dead bodies were strewn in the fields beside the Suchpur Baitara Gravel Road. Ten persons were killed on the spot. One of the persons who were brutally assaulted died on the way to hospital. The inquest was conducted between 10 a.m. and 1 p.m. on the same day. The corpses were then sent for the post-mortem examination. The FIR was lodged at 2.45 p.m. against 53 persons. The charge was framed against 81 persons under Sections 147, 148, 149, 326, 307, 302, 120B of the I.P.C. and Section 9B(2) of the Indian Explosives Act. The case was filed against 4 persons on 24th January, 2002 as they were absconding. The case was committed to the Sessions Court on 16th September, 2002 against seventy six persons besides one person who was arrested later.
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Seventy seven accused were tried by the Sessions Court. Thirty two witnesses were examined by the prosecution in support of its case. Out of these witnesses, PWs 1, 4, 6, 9, 10 and 14 claim to be eye-witnesses. The relatives of the deceased were also examined as witnesses. Four doctors were examined to prove the post-mortem reports. Three witnesses examined by the prosecution have been declared hostile. PWs 7, 8 and 11 are witnesses to the inquest conducted by PWs 20, 24 and 25. The Investigating Officers have been examined as PW 31 and PW 32. The accused have examined three witnesses to rebut this evidence.
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The broad contours of the arguments of the counsel for the appellants are:
(i) The FIR is not genuine because there is a delay in lodging it. Material particulars of the prosecution case have not been mentioned in the FIR. It is not the first information received by the police as the inquest was held before the FIR was lodged.
(ii) The statements of the witnesses have been recorded before the Court for the first time and their statements were not recorded under Section 161 of the Cr.P.C. by the police.
(iii) No test identification parade was held.
(iv) All the eye-witnesses identified the accused in the Court for the first time and, therefore, this identification was not valid.
(v) No independent witness was examined before the Court. All the witnesses were relatives of the deceased and, therefore, were interested witnesses. Witnesses who had been named in the FIR were not examined.
(vi) The medical evidence does not tally with the ocular evidence. The injuries mentioned in the post-mortem report do not match with the testimony of the witnesses or the inquest report.
(vii) The evidence led by the prosecution is untrustworthy.
(viii) Although the accused have been charged for committing an offence under Section 149, the common object of the accused has not been proved. Therefore, it is necessary for the prosecution to prove the overt act committed by each of the accused before they could be convicted.
(ix) The motive to commit the alleged crime has not been proved.
(x) The examination of the accused under Section 313, Cr.P.C. is not valid as each inculpatory statement has not been put to each of the accused as required by law.
In order to appreciate the arguments advanced, it would be useful to first deal with the judgments cited at the bar. The evidence can then be assessed and evaluated in the light of the principles of law enunciated by the Supreme Court.
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On the first point in issue regarding the delay in filing the FIR, the learned Counsel for the appellants have relied on the judgments in the case of State of A. P. v. Punati Ramulu and others reported in (1994) Supp (1) 590: (AIR 1993 SC 2644), Yanob Sheikh alias Gagu v. State of West Bengal reported in (2013) 6 SCC 428, Kanhaiya Lal and others v. State of Rajasthan reported in (2013) 5 SCC 655: (AIR 2013 SC 1940). The prosecution on the other hand has relied on Baldev Singh v. State of Punjab reported in AIR 2013 SC (Criminal) 2224, Ganga-bhavani v. Rayapati Venkat Reddy and Ors. reported in AIR 2013 SC (Criminal) 2135: (AIR 2013 SC 3681).
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An analysis of all these judgments reveals that it is not in every case that an FIR has to be discarded if it is filed after some delay. If the prosecution is able to explain the reason for the delay, the FIR can be accepted. Moreover, there is no specific period within which the FIR must be lodged. The only stipulation is that it must be lodged with alacrity and without inordinate delay. The Court is required to examine the explanation furnished by the prosecution for the delay in filing the FIR. The reasons for the delay could be varied. It may have occurred because of the number of victims in the case, the atmosphere prevailing at the scene of offence, the palpable fear in the mind of the complainant, etc.
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The appellants have contended through their Counsel that the FIR was not in effect the first information received by the police. This was because the inquest was conducted prior to the lodging of the FIR. The inquest was performed between 10 a.m. and 12 noon on 27th July, 2000 whereas the FIR was lodged at 2.45 p.m.
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Mr. Moitra, the learned Counsel for the appellants has relied on the judgment of this Court in the case of Mamfru Chowdhury and Ors. v. King Emperor reported in AIR 1924 Calcutta 323 in support of his contention that the FIR lacks details regarding the precise circumstances in which the incident occurred and the time and place of the incident. According to the learned Counsel, the incident must be split up into two parts - firstly, the one which occurred when Sk Safique was attacked by some persons while he was driving his tractor and the second part of the incident which occurred at the club room. The learned Counsel points out that no role has been ascribed to any of the accused in the FIR, more particularly, Nitya Narayan - appellant No. 23, who allegedly attacked Sk Safique with a knife on his cheek. He, therefore, submits that since this vital information has not been mentioned in the FIR it cannot be treated as genuine.
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In State of U.P. v. Ballabh Das and Others, etc. etc. reported in AIR 1985 SC 1384, Animireddy Venkata Ramana and Ors. v. Public Prosecutor, H.C. of A.P. reported in AIR 2008 SC 1603 and Pedda Narayana and Others v. State of Andhra Pradesh reported in 1975 SCC (Cri) 427 the Court has observed that minute details of the incidence of the crime need not necessarily be mentioned in the FIR. It is not an encyclopaedic version of all that occurred in the commission of a crime. It is a document which is only meant to give the substance of the allegations made. Therefore, the absence of details in the FIR would not render it invalid. While considering the effect of some omissions in the FIR on the part of the informant, the Court is required to take into consideration the probable physical and mental condition of the first informant. When the FIR is found to be truthful, it cannot be discarded only because the names of some of the accused persons had been mentioned, against whom the prosecution was not able to establish its case. An entry in the general diary, which was not produced, cannot be treated as the FIR and enquiries made on the basis of that entry by the police would not vitiate the entire trial. When information about...
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