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2016 Supreme(Cal) 328
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
ANIRUDDHA BOSE, SANKAR ACHARYYA, JJ.
Md. Kayum Ali Sheikh @ Julfikar - Appellant
Vs.
The State of West Bengal - Respondent
C.R.A. No. 272 of 2005
Decided On : 27-07-2016
For the Appellants :Mr. Asimesh Goswami, Mrs. Priyanka Dutta, Mr. Pradip Kumar Ray, Advocates.
For the State :Mr. Subir Banerjee, Mr. Jayanta Banerjee, Advocate.
In a murder case, the ocular evidence with the medical evidence adduced by prosecution during trial is convincing and the circumstances which are prominent as established during trial also form a complete chain to suggest only the fact that both the appellants took active part in committing the murder.
Headnote:
CRIMINAL LAW - Murder - Conviction - Appeal against - Challenge to the impugned judgment - Claiming that learned Judge in the trial Court failed to appreciate the flaws appearing in the depositions of the witnesses examined by prosecution - Held, the ocular evidence with the medical evidence adduced by prosecution during trial is convincing and the circumstances which are prominent as established during trial also form a complete chain to suggest only the fact that both the appellants took active part in committing the murder of Yasin Ali Sardar.
Fact of the Case:
The appellants were convicted and sentenced to life imprisonment for the murder of Yasin Ali Sardar. The incident occurred on 22nd October, 2002 in the evening between 7:30 p.m. to 7:45 p.m. when Md. Yasin Ali Sardar took tea from a tea-stall of Iman Ali Molla and went for drinking the tea to the bank of river. While he was drinking tea there the appellants and the absconding accused jointly assaulted him with sharp cutting weapons and committed murder to him beheading his body.
Finding of the Court:
The court found that the prosecution had proved its case beyond reasonable doubt on the basis of evidence adduced by prosecution and accordingly convicted and sentenced to the appellants under Section 302/34, I.P.C.
Issues: 1. Whether the learned Judge in the trial Court failed to appreciate the flaws appearing in the depositions of the witnesses examined by prosecution? 2. Whether the ocular evidence with the medical evidence adduced by prosecution during trial is convincing?
Ratio Decidendi: 1. The court held that the ocular evidence with the medical evidence adduced by prosecution during trial is convincing and the circumstances which are prominent as established during trial also form a complete chain to suggest only the fact that both the appellants took active part in committing the murder of Yasin Ali Sardar. 2. The court also held that even if the denial of appellants as submitted be considered as true then also prosecution case cannot be said as not proved beyond reasonable doubt.
Final Decision: The appeal was dismissed and the appellants were convicted and sentenced of the charge under Section 302/34, I.P.C.
SANKAR ACHARYYA, J.
1. This appeal has been preferred by two appellants Kamala @ Rahim Ali Sk. (A-1) and Md. Kayum Ali Sk. @ Julfikar (A-2) against the judgment of conviction dated 12.01.2005 and order of sentence dated 13.01.2005 to suffer rigorous imprisonment for life and to pay fine of Rs.2000/- each in default of payment of fine amount to suffer simple imprisonment for six months of the charge under Section 302/34, Indian Penal Code (in short I.P.C.) passed by learned Additional Sessions Judge, 5th Fast Track Court, Alipore, South 24 Parganas in Sessions Trial No. 6 (2) 2004 arising out of Sessions Case No. 102 (7) 03.
2. In the trial Court, out of three accused persons one Bhola @ Ichaque Sk. remained absconding and did not face the trial. His case was splitted up and the two appellants of this appeal faced the trial and after full trial they were convicted and sentenced under Section 302/34, I.P.C.
3. During pendency of this appeal A-2 claimed that at the time of alleged occurrence he was a juvenile. On his prayer for determination of his age under the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rules framed thereunder an enquiry was held by the trial Court under order passed in this appeal. After enquiry report was submitted with finding that Md. Kayum Ali Sk. @ Julfikar was major by age on the date of occurrence being the 22nd October, 2002. Subsequent to receipt of such report the application being CRAN 2012 of 2009 of A-2 for determination of age of the A-2 was not pressed and dismissed on 28.08.2015.
4. Both the appellants are detained in correctional home as convicts.
5. Inter-alia, in the petition of appeal, the appellants have assailed the judgment under appeal (hereinafter called as impugned judgment) that learned Judge in the trial Court failed to appreciate the flaws appearing in the depositions of the witnesses examined by prosecution during trial and accepted the evidence of prosecution mechanically. At the time of hearing learned counsel for the appellants pointed out certain portions of depositions of witnesses of prosecution claiming that the witnesses contradicted the prosecution story and that the case against the appellants was not proved beyond reasonable doubt for which the impugned judgment is liable to be set aside and the appellants deserve acquittal of the charge framed against them in the trial Court.
6. In the impugned judgment the trial Court believed that prosecution successfully proved its case beyond reasonable doubt on the basis of evidence adduced by prosecution and accordingly convicted and sentenced to the appellants under Section 302/34, I.P.C.
7. The case of the prosecution which was under trial in the Court below in substance is that on 22.10.2012 in the evening between 7:30 p.m. to 7:45 p.m. Md. Yasin Ali Sardar took tea from a tea-stall of Iman Ali Molla (PW 3) and went for drinking the tea to the bank of river. While he was drinking tea there the appellants and the absconding accused jointly assaulted him with sharp cutting weapons and committed murder to him beheading his body. Then the assailants went away towards hospital more. The absconding accused and A- 1 are two brothers and A- 2 is son of the absconding accused. They killed the victim out of previous grudge.
8. Said incident was reported at Basanti police station in the same night of occurrence at 2:05 a.m. of 23.10.2002 by Motiar Mandal (PW 4) lodging written information (exhibit-1) which was written by Abul Kasem Sardar (PW 1). On the basis of said information at police station A.S.I. Sushil Kuamr Pal (PW 10) registered Basanti P.S. Case No. 86 (10) 02 dated 23.10.2002 under Section 302/34, I.P.C. and drew up formal FIR (exhibit-5).
9. PW 14 sub-inspector Alok Kumar Ghosh held investigation of the case. He claimed that during investigation he visited the place of occurrence (in short P.O.) in the night of alleged occurrence of murder, prepared rough sketch map with index (exhibit-
