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High Court of Judicature at Calcutta
JAYANTA KUMAR BISWAS & SUBAL BAIDYA, JJ.
Md. Kallu & Another
Versus
State of West Bengal
C.R.A. No. 309 of 2005 (Appellate Side)
Decided On : 17-12-2013
In the instant case, the appellants were convicted under Section 302/34 of the Indian Penal Code for stabbing two victims to death over a financial dispute. The prosecution's case relied heavily on the testimonies of three eyewitnesses, the recovery of the murder weapons, and the dying declaration of one of the victims. The defense, on the other hand, argued that the eyewitnesses were unreliable, the seizure of the weapons was improper, and the dying declaration was inadmissible.
Fact of the Case:
The deceased Mansur Ali and Tafsir Ahmed Khan, who were business partners, had a financial dispute with the appellants, Kallu and Md. Amjad. On the day of the incident, the appellants confronted the victims in front of Wasim Lodge on Rafi Ahmed Kidwai Road and stabbed them to death. Three eyewitnesses, PW 12, PW 14, and PW 22, witnessed the incident and identified the appellants in a Test Identification Parade (TIP) and during the trial. The police recovered the murder weapons, a knife and a big knife, from the scene of the crime and seized them under a seizure list in the presence of independent witnesses. One of the victims, Mansur Ali, made a dying declaration to PW 5 and PW 20, in which he stated that he was stabbed by the appellant Kallu and his friend Tafsir was stabbed by the appellant Md. Amjad.
Finding of the Court:
The court found that the prosecution had proved its case beyond a reasonable doubt. The testimonies of the eyewitnesses were found to be credible and reliable, as they had no motive to falsely implicate the appellants. The TIP was conducted in accordance with the law, and the appellants were properly identified by the eyewitnesses. The recovery of the murder weapons was also found to be proper, as the police had obtained a search warrant and had seized the weapons in the presence of independent witnesses. The dying declaration of the victim Mansur Ali was also found to be admissible, as it was made shortly after the incident and was corroborated by other evidence.
Issues: 1. Whether the eyewitnesses were reliable and their testimonies could be relied upon. 2. Whether the Test Identification Parade (TIP) was conducted in accordance with the law and whether the appellants were properly identified. 3. Whether the recovery of the murder weapons was proper and whether the seizure list was valid. 4. Whether the dying declaration of the victim Mansur Ali was admissible and whether it could be used against the appellants.
Ratio Decidendi: 1. The court held that the eyewitnesses were reliable and their testimonies could be relied upon, as they had no motive to falsely implicate the appellants and their testimonies were consistent with each other and with the other evidence in the case. 2. The court held that the TIP was conducted in accordance with the law and that the appellants were properly identified by the eyewitnesses, as the TIP was conducted under the supervision of a magistrate and the eyewitnesses had a clear view of the appellants at the time of the incident. 3. The court held that the recovery of the murder weapons was proper, as the police had obtained a search warrant and had seized the weapons in the presence of independent witnesses, and that the seizure list was valid as it was prepared in accordance with the law. 4. The court held that the dying declaration of the victim Mansur Ali was admissible and that it could be used against the appellants, as it was made shortly after the incident and was corroborated by other evidence.
Final Decision: The court dismissed the appeal and upheld the convictions and sentences of the appellants under Section 302/34 of the Indian Penal Code.
Subal Baidya, J.
1. This Criminal Appeal is directed against the judgment of conviction under Section 302/34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life with fine of Rs. 5000/- with default clause passed by the learned City Sessions Judge, 12th Bench, Calcutta in a Sessions Trial arising out of Sessions Case No. 80 of 2003.
The appeal was admitted vide order dated June 9, 2005 and the appellants’ prayer for bail pending hearing of the appeal was rejected vide order dated April 20, 2006.
The background fact of the prosecution case out of which the Criminal Appeal No. 309 of 2005 is arising is as follows: one Mustaque Ahmed residing at 17/2, Smith Lane, Kolkata- 13, P.S. Taltala is the owner of a bookshop facing towards east styled as Hyder Ali book seller at 22, Rafi Ahmed Kidwai Road, Kolkata – 16. On April 11, 2003 at about 20.40 hours he came to his shop from his residence and sat in his shop to run his business and at about 20.50 hours on that day he heard a hue and cry and noticed that in front of his shop on the tram -line on Rafi Ahmed Kidwai Road four persons were in hot altercation and out of them two persons carrying Choppers were in hot altercation with two others and suddenly he heard a shouting of cry and noticed one person came in front of his shop and fell down on the western side in front of premises No. 22, Rafi Ahmed Kidwai Road and another person also fell down on the road and they were lying in a pool of blood coming out of their persons profusely. The other two persons who assaulted the said two persons went away along Rafi Ahmed Kidwai Road towards Goltala and thereafter the local people removed the two injured persons to a hospital where they got admitted in a precarious condition and he would be able to identify the miscreants if he saw them again.
On the basis of this statement of Mustaque Ahmed New Market Police Station Case No. 113 dated April 12, 2003 was started by the police and on completion of investigation the Investigating Officer submitted the charge-sheet under Section 302/34 of the Indian Penal Code. Thereafter, both the appellants were placed on trial to answer the charge under Section 302/34 of the Indian Penal Code before the learned City Sessions Judge, 12th Bench, Calcutta.
During trial prosecution has examined as many as 33 witnesses. PW 1, ASI of Calcutta Police attached to Detective Department, Calcutta prepared the rough sketch map and the final sketch map of the place of occurrence and PW 4, constable attached to the same department took the photographs of the place of occurrence and also the photographs of two deceased identified by a constable of New Market Police Station in the morgue. PW 3, an assistant record keeper attached to Mission of Mercy Hospital (previously known as Assembly of God Church Hospital) supplied the medical treatment sheets of deceased Mansur Ali and Tafsir Ahmed Khan on April 14, 2003 to the Police Officer of New Market Police Station who seized the same under seizure list. PW 2, Ruhi Begam is the wife of deceased Mansur Ali. PW 5 is the friend of PW 20, the younger brother of PW 2. PW 6 is the cousin of deceased Mansur Ali. PW 7, constable attached to New Market Police Station as per direction of Sri D. Banerjee, S.I. of police (Investigating Officer) carried the dead body of Tafsir Ahmed khan to Calcutta Police morgue and identified the said dead body to the Magistrate who held inquest over the said dead body and also took the dead body of deceased Mansur Ali to the police morgue and identified the dead body of the deceased Mansur Ali to the Magistrate holding inquest over the said dead body. PW 8, Deputy Manager of system Control Department, C.E.S.C. at Poddar Court, 18, Rabindra Sarani, Kolkata deposed regarding any interruption of supply of electricity at 22, Rafi Ahmed Kidwai Road and its surroundings on April 11, 2003 in between 20 hours and 22 hours. PW 9, PW 10 and PW 11 are the medical officers attached to
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