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CALCUTTA HIGH COURT
B. C. CHAKRABARTI, JITENDRANATH CHAUDHURI, JJ.
GOFUR SHIEKH AND ANOTHER
VERSUS
THE STATE
Criminal Appeals No. 421 and 495 of 1979,
Decided On : 18-3-1983
CRIMINAL APPEAL - DAOCITY WITH MURDER - SECTION 396 OF THE PENAL CODE - IDENTIFICATION OF ACCUSED - TEST IDENTIFICATION PARADE - RELIABILITY OF WITNESSES - ADMISSIBILITY OF POST-MORTEM REPORT - CONVICTION AND SENTENCE.
Fact of the Case:
Two appellants, Gofur Sk. and Panchanan Kahar, were convicted under Section 396 of the Penal Code for committing dacoity with murder. The prosecution's case was based on the testimony of two eyewitnesses, P.W. 1 Sudhir Chandra Mondal and P.W. 3 Ashima Mondal, who identified the appellants during the investigation and in the test identification parades.
Finding of the Court:
The court found that the evidence against the appellant Gofur Sk. was not reliable as the sole eyewitness, P.W. 1, had failed to identify the acquitted accused Sohrab Sk. in the first test identification parade but later identified him in the subsequent parade. The court also noted that the Investigating Officer had initially failed to include Gofur Sk. in the charge sheet due to a mistake.
Issues: 1. Whether the evidence of the eyewitnesses was reliable and sufficient to convict the appellants. 2. Whether the post-mortem report was admissible in evidence without calling the doctor who conducted the autopsy.
Ratio Decidendi: 1. The court held that the evidence of P.W. 1 was unreliable due to his inconsistent identification of the acquitted accused Sohrab Sk. in the test identification parades. The court also noted that the Investigating Officer's mistake in not initially including Gofur Sk. in the charge sheet raised doubts about the prosecution's case. 2. The court held that the post-mortem report was not admissible in evidence as the doctor who conducted the autopsy was not called to testify and no explanation was offered for his absence.
Final Decision: The court acquitted the appellant Gofur Sk. of the charges under Section 396 of the Penal Code due to insufficient evidence. The court convicted the appellant Panchanan Kahar of the lesser offense under Section 395 of the Penal Code and sentenced him to life imprisonment.
Jitendra Nath Chaudhuri, J.:- These two appeals being Crl. App. No. 421 of 1979, Gofur Sk. v. State and Cri. App. No. 495 of 1979. Panchanan Kahar alias Pacha Kahar v. State were heard together as they arose out of orders of conviction under Section 396 of the Penal Code and sentences of life imprisonment passed in Sessions Trial No. 2 of July. 1979 by the learned Additional Sessions Judge, Murshidabad.
2. Originally in that joint trial two other accused namely. Sohorab Sk. and Israfil Sk. were also charged under Section 396 of the Penal Code and one Dhiren Rajbansi and one Ainal Haque were charged each under Sec. 412 of the Penal Code for possession of articles arising out of the dacoity. Excepting the two present appellants all others have been acquitted of the respective charges levelled against them. ,
3. The charge against each of the present appellants reads as follows :-"That you, on or about the 25th day of June. 1974 at, village Kodla under P. S. Berhampore along with 20/22 persons committed dacoity at the house of Sudhir Chandra Mondal and that in the commission of such dacoity murder of Ananta Mondal was committed by one of your members and you thereby committed an offence of dacoity with murder punishable under Sec. 396 of the Penal Code and within the cognizance of the Court of Session."
4. The prosecution called 20 witnesses. The defence did not call any witness. For the purpose of the present appeals P. W. 1 Sudhir Chandra Mondal and p. W. 3 Ashima Mondal are the two eye-witnesses who deposed and identified the two accused. P. W. 1 identifying the appellant Gofur Sk. and P. W. 3 identifying Panchanan alias Pacha respectively.
5. P. W. 1 Sudhir Chandra Mondal lodged the F. I. R. The incident is said to have occurred round about midnight of 25/26 June, 1974 in his house. The F. I. R. was lodged at 5-30 hours in the morning of 26-6-74 at the Police Station. It is the evidence of p. W. 1 that round about midnight there was an armed dacoity in his house and he was beaten up. The dacoits were carrying torch lights and were armed with Jhabas and Tangis. In his view 20/25 dacoits raided the house, some were keeping guard outside and the dacoits took away cash, gold, utensils, clothes etc. The dacoity according to him continued for about an hour. In the light of the torches which the dacoits were focussing he could mark the features of some of the dacoits. In Court, he identified the appellant Gofur Sk. and one Sohorab Sk, the acquitted accused as being among the dacoits in his room. According to his evidence the appellant Gofur Sk. was breaking open the wooden Sinduk and the acquitted accused Sohorab Sk. was moving about in the room where the witness was beaten up. It is his evidence that these dacoits were all unknown persons. The F. I. R. lodged by him was also lodged against unknown persons.
6. In cross-examination the defence suggestion that he knew Gofur Sk from before the incident was denied by him. Similarly he denied the suggestion that the acquitted accused Sohorab was known to him from before by name.
7. P. W. 3 Ashima Mondal deposes that P. W. 1 is the husband of her mother's sister and that she was in his house on the relevant night sleeping in the same room with P. W. 2 Pratima Mondal and Sarama Mondal. She describes how on that night the dacoits broke open the door and entered with torch lights etc. They were focussing the beam of their torches in all directions and broke open the boxes. She identifies in Court the appellant panchanan alias Pacha Kahar as being one of the dacoits in that incident. According to her she noticed him at the time of the dacoity. He was standing in the verandah and was focussing the torch by calling other dacoits and arranging for leaving the house.
8. In cross-examination she frankly admits that some of the dacoits had covered their faces but denies the suggestion that she could not mark the features of any dacoits. It is her evidence that though it was a dark night there was
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