2004 Supreme(Cal) 754

High Court Of Calcutta
BHASKAR BHATTACHARYA, ARUN KUMAR
NAZRUL MONDAL - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. A.  219  Of  1985
Decided On : 12/09/2004

In case of irreconcilable conflict between ocular evidence and medical evidence, the presumption is that the prosecution did not bring the real picture before the Court.

Headnote:

CRIMINAL LAW - Murder - Conviction - Interference by High Court - Grounds - Investigation commenced before FIR lodged - FIR not admissible in evidence - Ocular evidence of witnesses not reliable - Medical evidence contradictory to ocular evidence - Prosecution failed to prove that deceased died at the place alleged - Accused entitled to benefit of doubt - Convictions and sentences set aside.

Fact of the Case:

The prosecution case was based on the complaint lodged by one Mohammad Ali Molla, the PW-1, which was treated to be FIR and was marked as Ext-1. The allegations made in the Ext-1 were that on September 28, 1979 at about 5:30 p.m., the informant went to Khairamari Hat for the purpose of purchasing cloths from the cut-piece shop of Hazi Rahaman. He was accompanied by Mojahar, Haran Rashid and Tahid Sk., all of village Khairamari. At the market, the informant saw that all the appellants and one Sk. Billal, since deceased, all of Khairamari, being armed with deadly weapons like sword, bhojali and lathi in their hands came from the direction of the house of Jasim and attacked Tahid Sk. Billal and Nazrul sk., being armed with sword and bhojali respectively, attacked him. At the relevant time, the informant, Majohar, Haran Rashid and mokshed stood in front of the shop of Hazi Rahaman. Mokshed Master, the son of Hazi Rahaman, requested them to spare them as they had no fault, but, Billal Sk. said that Hazi was a notorious man and he should be killed. Saying that, Billal with his sword and nazrul with his bhojali pierced Hazi Rahaman. Hazi Rahaman fell on his back. At that time Bajit Mondal and Mokshed Prodhan directed them to bring the head of Hazi after cutting. Those two persons were standing with lathi in their hands. Hearing such order, Billal Sk. hit hazi on his neck and the neck was severed. Hazi instantaneously died on the place of occurrence. Mokshed Master then requested them with folded hands to forgive him, but Billal Sk. , without hearing anything penetrated Mokshed Master with his sword. The sword cut his hand and went through in his chest. Then Nazrul hit him on the abdomen with his bhojali. Mokshed Master began to run from the room. At that time, Bajit Mondal and Mokshed prodhan asked them to finish him. Billal and Nazrul then chased mokshed Master from behind and hit him with their sword and bhojali. Mokshed Master fell down immediately. Nazimuddin, one of the accused, cut the head of Mokshed Master with his sword. Mokshed master died within a while. Thereafter, both Billal and Nazrul began to strike Mojahar and nazimuddin, another son of Hazi, aiming at their heads with the intention of murdering them. The ears of Mojahar were severed and he was seriously injured. Billal hit Nazimuddin on his abdomen with his sword. Both were admitted into hospital in serious condition.

Finding of the Court:

We have already pointed out that the alleged eye-witnesses made contradictory statements. The PW-1 made specific statement that Billal struck pw-4 with sword whereas the PW-4 stated that Na/rul caused such injury only to implicate him falsely. Even no such allegation was made in the statement under section 161 of the Code. He did not mention the name of Nazrul before the doctor. The nature of injury alleged to have been caused to PW-1 and PW-6 and the fact that those two witnesses were examined by the doctor after 41 hours also indicated that those injuries were not the outcome of the incident when the doctor even said that the former sustained the injuries "within 24 hours" and the age of the injury of the latter was "around 24 hours". The non-production of the injury report also casts doubt about the veracity of the evidence given by the prosecution. We, thus, find that the prosecution has failed to prove that the PW-1 and PW-6 are really "injured witnesses". The PW-4, it is apparent, was not injured by at least Nazrul and as such his version that he was injured by Nazrul is out-and-out a false statement and should be discarded without any hesitation.

Issues: 1. Whether the FIR was really written long thereafter as will appear from the fact that the same reached the Magistrate on 2nd October, 1979. 2. Whether the alleged eye-witnesses themselves were set up ones and were not at all present at the time of alleged incident. 3. Whether the place of occurrence of death of Mokshed master as mentioned in the FIR was at variance with the one found by the police as per inquest report. 4. Whether the prosecution has failed to prove that the deceased died at the place alleged.

Ratio Decidendi: 1. The FIR is one of the modes by which a person may put the criminal law into action by giving information of commission of a cognizable offence under section 154 of the Code of Criminal Procedure. The information so given is called "first information" because it is the basis upon which an investigation is commenced under Chapter XII of the Code. However, the receipt and recording of information is not a condition precedent for the setting in motion of criminal proceedings and such information need not necessarily be given by a person having the first hand knowledge of the fact and may be just hearsay. Similarly, the mere fact that the information given by the informant was not properly recorded by the police Officer in accordance with the mandate of section 154 of the Code, it cannot be said that no investigation in law could commence. 2. Whether a particular statement is an FIR or not is important in the sense that if such statement is made really in terms of section 154 of the Code, it becomes admissible in evidence, though, not a substantive piece of evidence; whereas if the same is recorded after the investigation under Chapter XII of the Code has commenced, it should be treated to be a statement under section 161 of the Code and is not admissible except for the purpose of contradiction as mentioned in section 162 of the Code, subject of course, to the provisions contained in sections 27 and 32 of the Evidence Act. 3. In case of irreconcilable conflict between ocular evidence and medical evidence the presumption is that the prosecution did not bring the real picture before Court.

Final Decision: We have already pointed out that in the evidence given by the doctor who conducted post-mortem examination of the deadbodies specifically found only injury at the throat of the deceased and there was no other stabbing injury on the body of the Hazi. The prosecution has unusually not exhibited the post-mortem report. Even if we believe the evidence given by the doctor, it is apparent that all the alleged eye-witnesses produced by the prosecution made false statement that Nazrul struck blows with bhojali on Hazi. It is now settled law that in case of irreconcilable conflict between ocular evidence and medical evidence the presumption is that the prosecution did not bring the real picture before Court. We have already pointed out that the alleged eye-witnesses made contradictory statements. The PW-1 made specific statement that Billal struck pw-4 with sword whereas the PW-4 stated that Na/rul caused such injury only to implicate him falsely. Even no such allegation was made in the statement under section 161 of the Code. He did not mention the name of Nazrul before the doctor. The nature of injury alleged to have been caused to PW-1 and PW-6 and the fact that those two witnesses were examined by the doctor after 41 hours also indicated that those injuries were not the outcome of the incident when the doctor even said that the former sustained the injuries "within 24 hours" and the age of the injury of the latter was "around 24 hours". The non-production of the injury report also casts doubt about the veracity of the evidence given by the prosecution. We, thus, find that the prosecution has failed to prove that the PW-1 and PW-6 are really "injured witnesses". The PW-4, it is apparent, was not injured by at least Nazrul and as such his version that he was injured by Nazrul is out-and-out a false statement and should be discarded without any hesitation. We have already pointed out that the prosecution has failed to prove that Mokshed Master died at the Hat within 10 cubits from the shop room of Hazi immediately after the murder of Hazi. Ext-7 proves that initially when Hazarat Ali left for police station, Mokshed was not killed and as such, he was not killed in the incident taken place at the Hat. Thus, the prosecution has failed to prove that the accused persons of these two appeals are involved in the murder of Mokshed and they have given false evidence of murder of Mokshed. The appeals are, therefore, allowed and the order of conviction and the sentence imposed upon the appellants in these two appeals are set aside.