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2017 Supreme(Cal) 152
IN THE HIGH COURT OF CALCUTTA
Debasish Kar Gupta, Md. Mumtaz Khan, JJ.
Md. Ainul and anr. - Appellants
Versus
The State of West Bengal - Respondent
CRA Nos. 529 of 2008 & 330 of 2014
Decided On : 15-05-2017
Advocate Appeared:
For the Appellants : Mr. Sekhar Basu, Mr. Somnath Banerjee, Mr. Ranadeb Sengupta, Mr. Abhijit Bhadra
For the State : Mr. Ranabir Roy Chowdhury, Mr. Mainak Gupta
The main legal point established is that discrepancies in eyewitness testimony do not affect credibility unless they are material, and the failure to question the accused about certain circumstances does not necessarily vitiate the trial unless it causes prejudice or a failure of justice.
Headnote:
Indian Penal Code - Murder - Section 302, Section 34 - Summary
Fact of the Case:
The appellants were convicted for the murder of the victim, who was shot during an altercation over money demanded from lorry drivers. The victim died due to gunshot injuries, and the appellants were charged under Section 302 of the Indian Penal Code read with Section 34.
Finding of the Court:
The court found that the eyewitnesses' testimony, medical evidence, and ballistic report corroborated the prosecution's case. The court also noted discrepancies in the evidence but held that they did not affect the credibility of the eyewitnesses. The court rejected the plea of alibi and found the appellants guilty beyond reasonable doubt.
Issues: The issues included contradictions in the evidence, discrepancies in the autopsy report, and the failure to question the accused about statements recorded under Section 164 Cr. P. C. The court also considered the plea of alibi and the common intention of the appellants.
Ratio Decidendi: The court emphasized that discrepancies in eyewitness testimony do not affect credibility unless they are material. It also highlighted the principle that the failure to question the accused about certain circumstances does not necessarily vitiate the trial unless it causes prejudice or a failure of justice. The court applied the principle of common intention and emphasized the need for evidence of a preplanned, cold-blooded murder for conviction under Section 34.
Final Decision: The court quashed the conviction and sentence of two appellants and altered the conviction and sentence of the third appellant to Section 304 Part-I of the Indian Penal Code, sentencing him to ten years of rigorous imprisonment.
Md. Mumtaz Khan, J.
These appeals have been preferred by the appellants assailing the judgment, order of conviction and sentence dated July 11, 2008 passed by the Ld. Additional District and Sessions Judge, Fast Track Court-III Barrackpore, North 24 Parganas in Sessions Trial No. 26(7)06 arising out of Sessions Cases No. 22(3)06. By virtue of the impugned judgment appellants were convicted for commission of the offence punishable under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code (hereinafter referred to as IPC) and were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each in default to suffer further rigorous imprisonment for 2 years each with a direction for set off as per provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr. P. C.). Appellant Md. Ainul was, however, acquitted from the charges punishable under Section 25(1)(a)/27 Arms Act.
2. The case of the prosecution, in brief, is that on November 19, 2005 at about 10 p.m. four L.P. Lorry loaded with buffalos while proceeding towards Indira Colony along RN Thakur Road for delivery of the buffalos to P.W.1 stopped near a Vat on RN Thakur Road for unloading the buffalos. At that time appellants came there and demanded money from the drivers of those lorries to which they expressed their inability to pay. In the meantime, two of the drivers reported the matter to Md. Bhola, the victim. Accordingly Md. Bhola, the victim, along with P.W.1, P.W.2, P.W.4 and Md. Ijahar went there and told appellant Md. Ainul not to do this as they both deal in buffalos otherwise buffalo business will be stopped. Then an altercation took place between Md. Bhola, the victim and Md. Ainul, the appellant, and in course of altercation appellant Md. Ainul fired at the victim in his abdomen and thereafter all the appellants fled away therefrom. Victim was rushed to the R. G. Kar Hospital and a written complaint (Ext.1) was lodged.
3. On the basis of the above written complaint of P.W.1 scribed by P.W.9, received by P.W.14 on the same night was forwarded to the IC Belghoria P. S. through constable c/2025 Nemai Dhibar for starting a case. It was received at the Belghoria P.S. on the same night at 23.15 hours and a Belghoria P.S. Case No. 215 dated November 19, 2005 was started against the appellants under Section 326/307 IPC and 25/27 Arms Act and the case was endorsed to P.W.14 for investigation.
4. In the meantime, on November 23, 2005 at 04.40 p.m. victim died at R. G. Kar Medical Collage and Hospital. P.W.7, medical officer and RMO of R. G. Kar Medical Collage and Hospital then intimated the said death to Tala P.S.
5. On November 24, 2005 inquest was held at the R. G. Kar Medical Collage and Hospital by SI Kousik Das of Tala P.S. in connection with Tala P.S. inquest no. 846/05 dated November 24, 2005 in presence of P.W.5, cousin brother of the victim, and P.W.8, elder brother of the victim. Dead body was removed to NRS Morgue.
6. On November 25, 2005 at 4.40 p.m. P.W.6 conducted post mortem examination over the dead body of the victim and opined that death was to due to the effects of gun-shot injuries and homicidal in nature.
7. Charge Sheet being No. 14/2006 dated February 11, 2006 was submitted against the appellants under Section 302/34 IPC and 25/27 Arms Act by P.W.14.
8. On July 14, 2006 charge was framed under Section 326/34 IPC and 302/34 IPC against the appellant Ainul and Md. Lala @ Nizam and in addition to that under Section 25(1)(a) Arms Act against the Md. Ainul. Subsequently after arrest of the appellant Md. Pappa @ Nausad charge was framed against him on September 15, 2006 under Section 326/34 IPC and 302/34 IPC and after their pleading not guilty to the charges, trial commenced.
9. Prosecution examined 14 witnesses and after closer of the evidence for the prosecution appellants were examined under Section 313 Cr. P. C. Thereafter defence also examined 3 witnesses including
