Back
2012 Supreme(Cal) 132
High Court Of Calcutta
Girish Chandra Gupta, Indira Banerjee, JJ.
Ajijul Sk. Alias Dafadar Alias Choto Miya – Appellant
Versus
State Of West Bengal - Respondent
C.R.A. No. 438 of 2004 C.R.A. No. 711 of 2008 C.R.A. No. 733 of 2008
Decided on : Feb 13, 2012
Milan Mukherjee, Kallol Basu, Arijit Pyne, Subhashis Dasgupta, Asis Sanyal, Somnath Banerji, Ranadeb Sengupta, Manjit Singh, Kallol Basu, Anand Keshari, Pawan Kumar Gupta, Avik Sana, Prasun Kumar Dutta, Subrata Roy
Headnote:
The court dismissed the appeals of three appellants convicted of murder, attempt to murder, and theft. The court found that the appellants were falsely implicated due to political rivalry with the active connivance of the police. The court also found that the procedure adopted by the trial court, in the second part of the trial, of examining the witnesses in-chief de novo vitiated the trial. The court further found that the charge framed in the second part of the trial was misleading and the appellants did not have adequate notice of the case which they were required to meet. The court also found that the lacuna if any in the examination under section 313 of the Code of Criminal Procedure shall preclude the Court from taking into account the evidence on the record. The court also found that there is adequate evidence on the record to uphold the judgments of the trial Court considering the fact that the inquest report did not contain names of the accused persons and the apparent anomaly which suggests that the investigation was started before the FIR was lodged and the omission to produce the general diaries at the trial.
Fact of the Case:
Three appellants were convicted of murder, attempt to murder, and theft. The appellants appealed their convictions, arguing that they were falsely implicated due to political rivalry with the active connivance of the police, that the procedure adopted by the trial court in the second part of the trial vitiated the trial, that the charge framed in the second part of the trial was misleading, that the lacuna in the examination under section 313 of the Code of Criminal Procedure precluded the Court from taking into account the evidence on the record, and that there was inadequate evidence to uphold the judgments of the trial Court.
Finding of the Court:
The court found that the appellants were falsely implicated due to political rivalry with the active connivance of the police. The court also found that the procedure adopted by the trial court, in the second part of the trial, of examining the witnesses in-chief de novo vitiated the trial. The court further found that the charge framed in the second part of the trial was misleading and the appellants did not have adequate notice of the case which they were required to meet. The court also found that the lacuna if any in the examination under section 313 of the Code of Criminal Procedure shall preclude the Court from taking into account the evidence on the record. The court also found that there is adequate evidence on the record to uphold the judgments of the trial Court considering the fact that the inquest report did not contain names of the accused persons and the apparent anomaly which suggests that the investigation was started before the FIR was lodged and the omission to produce the general diaries at the trial.
Issues: 1. Whether the appellants were falsely implicated due to political rivalry with the active connivance of the police? 2. Whether the procedure adopted by the trial Court, in the second part of the trial, of examining the witnesses in-chief de novo vitiated the trial? 3. Whether the charge framed in the Second part of the trial was misleading and the appellants did not have adequate notice of the case which they were required to meet and the consequence thereof? 4. Whether the lacuna if any in the examination under section 313 of the Code of Criminal Procedure shall preclude the Court from taking into account the evidence on the record? 5. Whether there is adequate evidence on the record to uphold the judgments of the trial Court considering the fact that the inquest report did not contain names of the accused persons and the apparent anomaly which suggests that the investigation was started before the FIR was lodged and the omission to produce the general diaries at the trial.
Ratio Decidendi: The court held that the appellants were falsely implicated due to political rivalry with the active connivance of the police. The court also held that the procedure adopted by the trial court, in the second part of the trial, of examining the witnesses in-chief de novo vitiated the trial. The court further held that the charge framed in the second part of the trial was misleading and the appellants did not have adequate notice of the case which they were required to meet. The court also held that the lacuna if any in the examination under section 313 of the Code of Criminal Procedure shall preclude the Court from taking into account the evidence on the record. The court also held that there is adequate evidence on the record to uphold the judgments of the trial Court considering the fact that the inquest report did not contain names of the accused persons and the apparent anomaly which suggests that the investigation was started before the FIR was lodged and the omission to produce the general diaries at the trial.
Final Decision: The court dismissed the appeals of the three appellants.
Girish Chandra Gupta, J.
1. ON 16th October, 2000, a written complaint was lodged at 13.15 hrs. by Hasan Jamadar, alleging that at about 11.30 hrs. while the complainant and others were taking tea at the stall of Farman Gazi, four persons viz Jaharul Hq. @ Baro Mia, his younger brother Azizul Sk Dafadar also known as Choto Mia, Bablu Molla and Ayub Molla came to the aforesaid tea stall. Baro Mia drew a knife from the shop of Pagla Gazi; held the same at the neck of Kalam and threatened to murder him. The persons present at the tea stall including the complainant caught the knife. Baramia in the circumstances dropped the knife and took out instead a pipegun from his waist. Saukat, who was sitting by the side of the said Kalam sought to escape. He was shot at and he died at the spot. Kalam also sought to escape. Chotomia and the said Ayub chased him. He was caught and shot at by the said Ayub. Seeing the incident Roshan Jamadar ran for life. Chotomia shot a bullet targeting him. He as a result was injured. Thereafter all the four accused persons left the place of occurrence. They also took along the motor cycle of the victim Soukat. Kalam died on the way to hospital. A charge sheet was filed by the police against all the four accused persons under section 302 and 379 read with section 34 of the Indian Penal Code. The accused Baramia and the accused Ayub continued to abscond. The case was as such split up and the trial could proceed only against the accused Chotamia and Bablu Sk. for offences punishable under sections 302, 379, 307, 411 read with section 34 of the Indian Penal Code, which culminated in an order of conviction against the accused Chotamia of all the aforesaid charges but the accused Bablu Sk. was acquitted altogether by a judgment dated 27th May, 2004 passed by the learned Additional Sessions Judge, 5th Court, North 24 Parganas, Barasat. By an order dated 29th May, 2004, the convict Chotamia was sentenced to rigorous imprisonment for three years as also to pay fine of Rs. 1,000/- in default to suffer further simple imprisonment for a month for the offence punishable under section 379 of the Indian Penal Code. He was also sentenced to rigorous imprisonment for three years as also to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for a month for the offence punishable under section 411 of the Indian Penal Code. He was sentenced to imprisonment for life as also to pay a fine of Rs. 5,000/- in default to suffer further simple imprisonment for 5 months for the offence punishable under section 302 of the Indian Penal Code and identical punishment was also awarded for the offence punishable under section 307 of the Indian Penal Code. All the sentences were however directed to run concurrently. The said Chotamia preferred the aforesaid appeal being CRA No. 438 of 2004.
2. DURING the pendency of the aforesaid appeal, the accused Boramia and the accused Ayub were caught and tried and both were convicted by a judgment dated 22nd September, 2008 for the offence punishable under section 302 and 307 and read with section 34 of the IPC. By an order dated 23rd September, 2008 they were both sentenced to imprisonment for life for the offence punishable under section 302 read with section 34 of the Indian Penal Code. No separate sentence for the offence punishable under section 307 read with section 34 of the Indian Penal Code was however passed. The convict Ayub Ali has preferred the aforesaid appeal registered as CRA No. 711 of 2008 and the convict Baramia has preferred the aforesaid appeal registered as CRA 733 of 2008 against the judgment and order dated 22nd September, 2008 and 23rd September, 2008 respectively. This is how three appeals have come up before us arising out of the same transaction.
3. THE trial was held in two parts. THE first part of the trial ended in 2004 and the second part of the trial ended in 2008. Therefore, for convenience we shall hereinafter refer to the conviction made in 20
