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1996 Supreme(Cal) 408
High Court Of Calcutta
Samir Kumar Mookherjee, Rabin Bhattacharyya
AFZAUDDIN ANSARY - Appellant
Versus
STATE - Respondent
Crl. Appeal 133 Of 1990
Decided On : 10/08/1996
ARABINDA GHOSH, SASANKA KUMAR GHOSH
Evidence of recognition of assailants must be reliable and free from contradictions and inconsistencies. Statements recorded by the police under Section 162 of the CrPC are inadmissible in evidence unless made in the presence of a magistrate and the accused is given an opportunity to cross-examine the witnesses.
Headnote:
CRIMINAL APPEAL - CONVICTION AND SENTENCE - MURDER AND INJURIES - SECTION 302 AND 323 IPC - RECOGNITION OF ASSAILANTS - ADMISSIBILITY OF STATEMENTS - SECTION 154 AND 162 CRPC - EVALUATION OF EVIDENCE - REASONABLE DOUBT.
Fact of the Case:
The case involved a dispute between brothers over landed properties, leading to the murder of Basiruddin Ansari and injuries to his sons due to a bomb explosion. The prosecution alleged that the accused Najimuddin and Alauddin, along with others, attacked Basiruddin and his family, resulting in his death and injuries to his sons.
Finding of the Court:
The court found that the prosecution failed to prove the case beyond reasonable doubt. It held that the evidence of recognition of the assailants by the witnesses was unreliable and contradictory, and that the statements recorded by the police under Section 162 of the CrPC were inadmissible.
Issues: 1. Whether the evidence of recognition of the assailants was reliable and sufficient to convict the accused. 2. Whether the statements recorded by the police under Section 162 of the CrPC were admissible in evidence.
Ratio Decidendi: 1. The court held that the evidence of recognition of the assailants was unreliable and contradictory. It noted that the witnesses had given different accounts of the incident and that there were inconsistencies in their statements. The court also found that the recognition of the assailants was made in poor lighting conditions and that the witnesses had a motive to falsely implicate the accused. 2. The court held that the statements recorded by the police under Section 162 of the CrPC were inadmissible in evidence. It noted that the statements were not made in the presence of a magistrate and that the accused were not given an opportunity to cross-examine the witnesses.
Final Decision: The court allowed the appeal, set aside the conviction and sentence, and directed the release of the accused.
( 1 ) THIS criminal appeal is directed against the order of conviction and sentence passed by the learned Session Judge, Purulia in Session Trial No. 20 of 1989 where the learned court convicted all the accused persons under Section 302 read with Section 149 of the IPC. They were also found guilty of the offences having been committed by them under Section 323 read with Section 149 of the IPC. They were sentenced to suffer life imprisonment, although no separate sentence was passed by the learned court under Section 320 read with Section 149 of the IPC.
( 2 ) THE appellants, since affected by the decision of the learned court, have preferred the appeal for reversal of the order of conviction and sentence. In order to appreciate the contentions raised by the rival parties, it is worthwhile to give a brief resume of the facts though detailed by the learned court in his Judgment.
( 3 ) THE factual exposure, as highlighted by the case of the prosecution, relates to chronic dispute amongst the brothers over the landed properties which, according to the prosecution, snapped off the life of Basiruddin Ansari and the injuries inflicted on his sons for the explosion of bombs. The accused Najimuddin and Basiruddin were born of the same womb, but for the disputes and dissensions since erupted amongst the brothers that forced them to live in separate mess. Basiruddin on the fateful day was sleeping with his wife PW-1 Taliban in the western side room of their house and for the sultry weather, they left the door ajhar. When the might was proceeding in a meteoric speed silently and when it was close upon 11-30, she woke up from her sleep for the alarm raised by her husband. Surprisingly enough, Afazuddin was found with a knife and Alauddin stood by his side. The situation, according to her, was aggravating.
( 4 ) CAUGHT up with the crisis and in apprehension of danger to his life, she tried to save her husband in vain as she was pushed aside by Alauddin. Both the accused persons did not spare her husband, Afazuddin dealt a knife assault on her husband who was held by Alauddin. She recognized the assailants by the flash of the torches and the burning light of the lamp in the room. She also recognized other accused persons who were on the porch. They also flashed their torches.
( 5 ) HABIB immediately poured in, as he responded to the alarm raised by her mother who could not escape the assault for the explosion of bombs. There were others namely Faruk, Ansari and Ohayeb Ansari who also received injuries for the infliction of bomb assault by some of the accused persons. There were much uproarings when many others of the village rushed in and the accused decamped. Taliban booked the neighbours with the occurrence and the assailants of her husband and relations. Jamaruddin Ansari intimated the Pradhan who in his turn intimated the father-in-law of her son PW-4 Nausad Ansari. He relayed the occurrence over phone to the O. C. of the P. S. which found its way in the G. D. being the G. D. No. 386 dated 14. 8. 86.
( 6 ) MR. G. S. Shome, the Sub-Inspector of police alongwith force rushed to the spot, recorded the statement of Taliban and took charge of the dead body. He sent the FIR through the Constable No. 17 Subol to the PS for starting a case. Thereafter, he took up investigation of the case, recorded the statements of several witnesses, held inquest over the dead body to be the dead body of Basiruddin, seized the articles under seizure list duly attested by the witnesses, prepared the sketch map of the locale and, thereafter, he removed the injured to the hospital for the treatment.
( 7 ) PW-17 the autopsy surgeon conducted the post-mortem operation upon the body that was identified by PW-14 Anil in connection with Kashipur P. S. Case No. 4 dated 14. 10. 85.
( 8 ) THE investigating agency on completion of investigation submitted the charge-sheet before the learned SDJM who was duly satisfied that the case is excl
