Farid Sk. @ Manowar Hossain & Anr vs The State Of West Bengal
2022 Latest Caselaw 8411 Cal

                 IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL APPELLATE JURISDICTION
                            APELLATE SIDE

    Present:
    The Hon'ble Justice Joymalya Bagchi
                And
    The Hon'ble Justice Siddhartha Roy Chowdhury


                                     CRA 874 of 2013
                           Farid Sk. @ Manowar Hossain & Anr.
                                        Vs.
                             The State of West Bengal


    For the Appellants                : Mr. Sekhar Kumar Basu, Sr. Adv.
                                        Mr. Ranadeb Sengupta, Adv.

    For the Respondent                : Mr. Sanjoy Banerjee, Adv.

   Hearing concluded on               : 8th December, 2022

   Judgment on                        : 16th December, 2022


Siddhartha Roy Chowdhury, J.:

1. This criminal appeal assails the judgment and order passed on

25th September, 2013 and 26th September, 2013 by learned Additional

Sessions Judge, Kandi, Murshidabad in Sessions Trial No. 1 of April,

2013 (corresponding to Sessions Case No. 247 of 2013), convicting the

appellants for committing offence under Section 302/34 of the Indian

Penal Code and sentencing them to suffer imprisonment for life and to

pay fine of Rs. 10,000/- in default to undergo imprisonment for further

period of one year.

2. Briefly stated, Lili Bibi wife of Hasem Sk. set the criminal

administration of justice into motion by informing the Officer-in-charge

of Salar Police Station that on the fateful day her husband Hasem Sk.

along with Laltu Sk., Lala Sk., Dasa Sk. and Sishu Ghosh were going

to Kandi by bus registered as WGQ-57-4343. Akkash Sk. also boarded

the bus at Kagram. After the bus left Salar Bus Stop suddenly Dudun

Molla, Bali Molla, Miraj Molla, Farid Sk. and few other persons boarded

the bus, dragged Hasem Sk. out and killed him by using deadly

weapons like knife, bhojali, throat of Hasem Sk. was slit by the

miscreants.

3. As the information disclosed offence cognizable in nature Salar

P.S. Case No. 104 of 2010 dated 6th July, 2010 was registered under

Section 302/34 of the I.P.C. Police took up investigation which

culminated into submission of charge sheet. Trial commenced only

against the appellants, other accused persons did not face the trial.

During trial prosecution examined as many as 25 witnesses and

learned Trial Court having considered the evidence on record was

pleased to pass the impugned judgement.

4. Mr. Sekhar Kumar Basu, learned Senior Counsel representing the

appellants submits that learned Trial Court passed the impugned

judgment upon a misreading of evidence. Farid Sk. one of the convicts,

though was charged for committing offence within the meaning of

Section 302/34 of the I.P.C., the prosecution witnesses stated that he

desperately tried to save Hasem Sk. and for that he incurred the

displeasure of co-accused Dudun Molla. Learned Trial Judge ignored

the thumb rule of criminal law that when two views are possible, the

one that tilts in favour of the accused should inure to his benefit. It is

further contended that the requirements of Section 27 of the Evidence

Act has not been complied with by the Investigating Officer but learned

Trial Court failed to appreciate the same. Exhibit 15/1 and Exhibit

15/2 are the statements of two convicts recorded by the I.O. in course

of investigation under Section 161 of the Cr.P.C. In the said statements

none of the accused persons gave any indication of place where the

knife and bhojali were kept hidden by them. While adducing evidence

as P.W. 25, the I.O. claimed to have seized two knives, being produced

by the appellants. The I.O. however, did not recover any bhojali though

there was reference of bhojali in the statement purportedly made by

the accused persons while in custody. It indicates the hollowness in

the claim of I.O. about recovery of incriminating weapons from the

possession of the appellants. Police planted the weapons which is why

it was not sent for forensic examination.

5. Out of 25 witnesses examined P.W. 1 Lili Bibi was the de-facto

complainant did not have any direct knowledge about the incident.

P.W.s 2 to 4 are co-passengers. They claim to be eye witnesses.

6. P.W. 2 Laltu Sk. @ Kaferul Kasem stated that on 6th July, 2010 he

was going to Kandi along with others by bus. At Salar, Dudun Molla,

Bali Molla, Miraj and Farid murdered Hasem Sk. Accused Bali Molla

slit the throat of the victim while Farid Sk. tried to restrain them. P.W.

3 is one of the co-passengers who stated that after the bus left Salar

Bus Stop within few minutes Hasem Sk. was dragged out of the bus by

Bali Molla and Dudun Molla and he was killed by the accused persons.

The witness could not identify Farid Sk. on dock. During cross-

examination he stated to have found Dudun Molla and Bali dragging

Hasem Sk. out of the bus. P.W. 4 and P.W. 6 are two other persons

going to Kandi Court along with victim and they stated that after the

bus left Salar Bus Stop and rolled down for 100 cubits it was stopped,

Dudun Molla, Bali Molla, Miraj, Farid entered inside the bus and Miraj,

Bali and Dudun stabbed Hasem Sk. in the bus. Hasem was dragged

out of the bus then Dudun Molla, Bali Molla and Miraj stabbed him.

His throat was slit by Bali Molla. Farid tried to restrain them.

7. P.W. 5, Islam Sk. did not witness anything. His evidence is

inadmissible being hearsay. P.W. 7 and 8 are witnesses to seizure of

blood stained soil collected by the I.O. from the spot and their

signatures are marked as Exhibit 3 and 3/1. P.W. 9, 10, 11 and 12 are

the driver, conductor and Khalisi of the bus who denied to have

witnessed the incident. These witnesses stated that they were taking

tea at a tea stall and subsequently came to know about the murder of

a man. P.W. 13 is the Judicial Magistrate who recorded the statements

of two witnesses Laltu Sk. and Lala Sk. under Section 164 of Cr.P.C.,

admitted as Exhibit 4 and 5. P.W. 14, Abdul Azem took some

photographs of dead body and the place of occurrence. P.W. 15 is the

Autopsy Surgeon who found sharp cutting injury front of left side of

the neck measuring about 4"/2" upto bone depth. Sharp cutting

incised wound middle of the neck at the level middle thyroid cartilage 3

½"/2". Multiple stab injury at the level of thyroid upto skin depth. Stab

injury in the right side of the mouth 1"/1/2" upto bone depth. Two Stab

injury right side of the chest 1"/ 1/2" upto bone depth. Two stab injury

in abdomen and also lower abdomen upto visceral depth. 35 stab

injury on the left side of the flank upto muscle depth. There are three

stab injury on right arm 1" /1/2" each upto muscle depth. Two stab

injury on the right of scapula 1"/ 1/2" upto bone depth and in the back

ten stab injury 1/2"/1/2" upto bone depth. According to Autopsy

Surgeon the cause of death was haemorrhagic shock due to multiple

injuries. P.W. 16 and P.W. 18 did not have any direct knowledge about

the alleged incident. P.W. 17 was tendered by the prosecution for

cross-examination. P.W. 19 is the Recoding Officer who registered

Salar P.S. Case No. 104 of 2010 dated 6th July, 2010 under Section

302/34 of the I.P.C., F.I.R. is admitted as Exhibit 8 and P.W. 20 is the

Home Guard, Laikat Ali who put his signature on the seizure list after

the bus by which the victim or other witnesses were travelling, was

seized by the I.O. So is the evidence of P.W. 21 A.S.I. Pradip Kumar

Ghosh P.W. 22 Abu Bakkar Sk. P.W. 23 Ali Sk. P.W. 24, Mafirul Kasem

is the scribe of the written information who stated to have penned the

information under the dictation of Lili Bibi. The written information is

admitted as Exhibit 12.

8. P.W. 25 is the I.O. of this case who arrested two accused persons,

examined the witnesses, recorded their statement under Section 161 of

the Cr.P.C. and also arranged for recording of statement of two

witnesses under Section 164 of the Cr.P.C. by learned Judicial

Magistrate, Kandi. Accused Bali and Farid, according to P.W. 25 made

statements before him that led him to the recovery of incriminating

weapons which he seized and with the permission of superior, he

submitted charge sheet after collecting post mortem report and after

getting the rest of the accused persons Dudun Molla, Miraj Sk declared

as proclaimed offenders.

9. The prosecution witnesses namely P.W. 2 Laltu Sk., P.W. 3 Dasa

Sk., P.W. 4 Lala Sk., and P.W. 6 Akkash Sk. withstood the test of

cross-examination. There is nothing to impeach the credibility of those

witnesses. The oral testimony of the aforesaid witnesses unerringly

suggest that Hasem Sk., the victim was done to death by Bali Molla

and other two accused persons. Bali Molla slit the throat of Hasem Sk.

The testimony of the eye witnesses P.W.2, P.W. 3 and P.W. 4 as I have

already indicated herein before, is getting support from the testimony

of Autopsy Surgeon P.W. 15, Dr. Tapas Kr. Das as well as from the

post mortem report admitted as Exhibit 6.

10. The eye witnesses, however, made exonerating statements by

saying that Farid Sk. tried to restrain the accused persons and for that

he was assaulted by his father-in-law Dudun Molla. It goes without

saying that testimony of three eye witnesses out of four, exonerating

Farid Sk., unveils a probability that Farid Sk. was not sharing the

intention of committing murder of Hasem Sk. with the rest of the

accused persons.

11. True it is the statement leading to the recovery of incriminating

weapons does not inspire confidence. But when we find direct evidence

coming from the witnesses to the occurrence who stood the test of

cross-examination, the deficiency if any in the prosecution case

regarding recovery of incriminating weapons or non-examination of

those weapons in FSL does not take the sting out of the prosecution

case. So far convict Bali Molla is concerned we do not find any reason

to interfere with the finding of the learned Trial Court.

12. So far Farid Sk. the co-accused is concerned, we are of he

considered opinion he should be extended benefit of doubt for the

statements made by three out of four eye witnesses exonerating Farid

Sk. His conduct as we see through the testimony of eye witnesses P.W.

2, P.W. 3, P.W. 4 unerringly suggests that he did not share common

intention to commit murder of the victim. Therefore, while maintaining

the order of conviction against Bali Molla, we reverse the order of

conviction and record an order of acquittal extending benefit of doubt

to accused Farid Sk. He be forthwith released from custody, if not

wanted in any other case, upon executing a bond to the satisfaction of

the trial Court for a period of 6 months in terms of Section 437 A

Cr.P.C.

13. Period of detention suffered by Bali Molla during investigation,

inquiry and trial shall be set off in terms of Section 428 Cr.P.C.

14. Consequently, the appeal is allowed but in part. Application, if any,

stands disposed of.

15. Lower Court record along with copy of judgment be sent down to

learned Trial Court and a copy of judgment be sent to Superintendent

of Correctional Home for necessary compliance.

16. Urgent photostat certified copy of this judgment, if applied

therefor, should be made available to the parties upon compliance of

requisite formalities.

I agree.

(Joymalya Bagchi, J.) (Siddhartha Roy Chowdhury, J.)