Prabab Kumar Deb, J.
1. The two appeals being CRA 240 of 2003 and CRA 244 of 2003 have been directed against the conviction and sentence passed by the learned Additional District & Sessions Judge, 13th Court, 24 Parganas (South), Alipore in connection with Sessions Trial No 02(8) of 2001.
2. The brutal and shocking incident of murder of a political personality occurred in the busy area of Garden Reach. The prosecution case, as narrated in the FIR and elaborated further during the course of the trial, was to the effect that while Md. Jahangir @ Mogal moved along Iron Gate Road towards Garden Reach Road, he was accosted by few miscreants. Encircling him, the miscreants started firing at him. All the miscreants were reported to have had machines in their hands. Md. Jahangir collapsed on the street after being shot from close range. The miscreants numbering 8 to 10 persons dispersed to different directions on seeing the witnesses converging in the place of occurrence.
3. As blood gushed from the wounds, steps were taken to shift the injured to the nearby Nursing Home. On examination of the injured in Hannan Nursing Home, the doctor declared him dead. Subsequently, the body of Md. Jahangir was taken to S.S.K.M. Hospital for futher examination. The attending doctor of S.S.K.M. Hospital also declared him dead.
4. With the lodging of the FIR, Garden Reach P.S. Case No. 14 dated 12/02/01 was registered. In course of the Investigation, the initial task of holding the inquest was conducted by the Investigating Officer. It was followed by sending the dead body to the morgue for post mortem examination. The Investigating Officers also seized the incriminating articles. The statements of the eye witnesses were recorded on the very date of the incident. Eventually, on collection of all the materials, examination of the witnesses, chargesheet was submitted against both the appellants.
5. Following the commitment of the case to the Court of Session, charge under Section 302 read with Section 34 of the Indian Penal Code was framed against both the appellants. They were charged with having committed the intentional murder of Md. Jahangir in furtherance of their common intention. In the wake of specific denial of the accusations, the prosecution side examined as many as 24 witnesses including the informant, the other eye witnesses of the occurrence, the witnesses of the seizure, the medical officers examining the dead body from time to time and the police officers who took active part in the investigation of the case. On the other hand, two witnesses were examined on behalf of the defence. Relying strongly on the statements of the eye witnesses and the corroborative medical papers, the learned Additional Sessions Judge convicted and sentenced both the appellants for commission of offence under Section 302 read with Section 34 of the Indian Penal Code. Both the appellants were sentenced to imprisonment for life and also to pay fine of Rs. 5000/- each, in default, to suffer further rigorous imprisonment for one year.
6. Aggrieved by and dissatisfied with the order of conviction and sentence, the appellants filed separate appeals - C.R.A. 240 of 2003 being filed by appellant Abuzar Hossain @ Gulam Hossain and C.R.A. 244 of 2003 being filed by appellant Syed Darain @ Ahsan.
7. Challenging the conviction and sentence, Mr. Sekhar Basu, learned senior counsel, has submitted that since the real informant was not available during the trial, the prosecution side performed the dubious act of bringing another person as the informant. Mr. Basu has submitted that the FIR itself discloses that the informant Rashid Khan resided in a house at B/46 Iron Gate Road. Nowhere in the FIR, it has been indicated that the informant Rashid Khan was known as Riaz Khan. P.W.3 Riaz Khan testified during the trial that he was also known as Rashid Khan. He claimed to have resided all along in B/43 Iron Gate Road. As it is usually done by illiterate persons, the informant put his L.T.I, on the FIR P.W.3 during the trial, however, acknowledged that he could sign in English. Such startling disclosure by P.W.3, it is contended by Mr. Basu, gives rise to the genuine doubt as to the authenticity of the FIR maker. The identity of P.W.3 being shrouded in mystery, the Trial Court should not have placed undue importance on the testimony of P.W.3 Riaz Khan.
8. Commenting on the statements of P.W.3 and P.W.4, Mr. Basu has submitted that the prosecution made a futile bid to project those two persons as eye witnesses of the occurrence. From the contradictory statements made by them during the trial, it can be assumed that they had hardly any occasion to see the incident. As per statement, of P.W.4 Md. Samin Ansari. he along with P.W.3 and one Munna seated on Chairs, in a 'Khatal'. Shifting from the original stand, the witness afterwards stated that near the lamp post he was gossiping with Md. Riaz Khan and Munna. Similarly, P.W.3 initially alleged that Md. Jahangir vas shot from guns. Subsequently, he claimed that firing was made from revolvers.
9. Refuting the claim of the prosecution that P.W.5 and P.W.7 were the eye witnesses of the occurrence, Mr. Basu has submitted that if the statements of P.W.6 are to be belived. P.W.5 Md. Yusuf and P.W.7 Md. Jahir hardly have had any occasion to see the incident from handshaking distance. Drawing our attention to the statement of P.W.6 Naushad Ali, Mr. Basu submits that the witnesses had disclosed during the trial that P.W.5 Md. Yusuf and P.W.7 Md. Jahir scampered towards Victoria Jute Mill after the bursting of 7/8 crackers in the nearby area. In view of the revelation of real fact and truth, the Trial Court should not have accepted P.W.5 and P.W.7 as witnesses of the occurrence, as urged by Mr. Basu.
10. Describing the post mortem report as unreliable, Mr. Basu contends that Autopsy Surgeon has not clarified as to how injury No. 6 was sustained by the deceased Md. Jahangir @ Mogal. The doctor conducting the post mortem examination has not also claimed that injuries No. 1,2,3,4 & 5 had been caused as a result of firing by guns. None of the so called eye witnesses could throw any light as to how such minor injuries sustained by the victim. The injuries, as referred in the post mortem report, might have been sustained as a result of the victim flopping onto the ground, as urged by Mr. Basu.
11. Dealing with the aspect of identification of the appellant Abuzar Hossain during the investigation, Mr. Basu has submitted that since there are apparent defects and loopholes in the T.I. Parade, the Trial Court should not have placed any reliance on the aspect of identification of the appellant Abuzar Hossain during the early stage of investigation. It is contended that the special mark of identification of the suspect Abuzar Hossain was not noted in the T.I, Parade Sheet, nor there was any attempt to note down the features of the persons placed in the T.I. Parade.
12. Commenting on the conviction of the appellant Abuzar Hossain, Mr, Basu submits that the Trial Court altogether overlooked the aspect that the name ofthe appellant Abuzar Hossain did not figure in the FIR. Despite the claim of P.W.3 Riaz Khan that he had seen the incident from close range, the witness disclosed that he could identify only one miscreant. Had the appellant Abuzar Hossain been present at the spot, the witness could have easily recognized him. In their statements under Section 161 Cr. PC. the witnesses P.W.5 and P.W.7 mentioned about the role of Abuzar Hossain in the commission of murder. Such statements of P.W. 5 and P.W.7 were incidentally recorded before the recording of the FIR. If the eye witnesses had really seen the appellant Abuzar Hossain in the commission of crime, it ought to have been reflected in the FIR itself. Efforts being made to introduce such an important fact during the trial, the Trial Court should not have placed any reliance on that aspect. Mr. Basu has referred to the case of Ram Kumar Pande v. The State of Madhya Pradesh reported in : 1975CriLJ870 , in support of his contention that omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In the instant case, there being glaring omissions of important facts in the FIR, the Trial Court ought to have given at. least the benefit of doubt in favour of the appellant. Abuzar Hossain.
13. Strongly defending the conviction and sentence against both the appellants, Mr. Kazi Safiullah, learned Public Prosecutor, has submitted that since a vivid account of the incident had been given by nearly all the eye witnesses of the occurrence, the Trial Court had every reason to bank on it. The incident, as told by the eye witnesses, was also found to be acceptable and convincing. There was hardly any contradiction in the statements of the eye witnesses. What they stated during the investigation were reproduced during the trial. The eye witnesses being residents of their locality, it was easier for them to identify the appellants in the street, lights. What they stated about the victim sustaining bullet injury also found due corroboration from the post mortern report. The direct evidence was thus supplemented by medical papers. In the face of presentation of such overwhelming evidence against the appellants, the Trial Court rightly convicted and sentenced them for commission of offence under Section 302 read with Section 34 of the Indian Penal Code, as contended by Mr. Safiullah.
14. The prosecution heavily relied on the testimony of the eyewitnesses to build up its case. The medical papers and the seizure list were also produced as corroborative piece of evidence. Nearly all the eyewitnesses who had seen the incident were examined on behalf of the prosecution. P.W.3 was said to have lodged the FIR following the murder of Mogol in front of B/35 Iron Gate Road. P.W.3 Riaz deposed to the effect that on 11/02/2001 at about 9-30 P.M. he found Mogol moving towards B/35 Iron Gate Road after coming down from Bengali Bazar. On hearing the sound of firing, he along with his friend hurried to the spot. He found the appellant Darain along with 8 to 10 persons encircling Mogol from all sides. Those armed miscreants fired at Mogol in front of B/35 Iron Gate Road, its alleged by P.W.3 Riaz. The victim called Mogol collapsed onto the ground with bullet injury. As the witnesses namely Yusuf and Jahir raised alarm, the appellant Darain and his associates threatened them. Struck with fear, the witnesses dispersed towards Garden Reach Nursing Home. The appellant Darain and his associates also dispersed in different directions.
15. P.W.4 Md. Samin Ansari testified that on 11/02/2001 round about 9-45 P.M. he found Mogolbhai heading towards B/35 Iron Gate Road from Bengali Bazar. After a while, he heard the sound of firing. Both of them hurried to the spot where they found Darain and 8 to 10 other persons standing near Mogol. Expressing their vow to finish Mogol, the miscreants started firing at him. with the result that Mogol fell on B/35 Iron Gate Road. The witnesses further confirmed that brandishing a revolver. Darain threatened the witnesses namely Yusuf and Jahir, when they raised alarm.
16. As disclosed by P.W.5 Md. Yusuf, when Mogolbhai reached in front of B/35 Iron Gate Road from Bengali Bazar he was detained by the appellant Darain, Abuzar Hossain and their associates. All those persons with revolvers in their hands fired at Mogol, with the result Mogol instantly fell down onto the ground. The witness also corroborated the fact that. Darain sought to silence him and Jahir by pointing revolver at them when they started raising alarm.
17. P.W.7 Md. Jahir also came out with identical accusation against the appellants. As stated by the witnesses during the course of the trial. Jahangir @ Mogol moved towards B/35 Iron Gate Road after coming down from Bengali Bazar. The witness also confirmed that the appellants namely Darain. Abuzar Hossain and some others encircled Mogol afterwards they indiscriminately started firing at Mogol. Before that they resolved to murder Mogol.
18. P.W.6 Naushad Ali disclosed during the trial that the witnesses namely Yusuf and Jahir were gossiping in front of a shop Just prior to the incident. He headed towards the spot on hearing the sound of cracker. On reaching there, he found Mogol lying on the ground with the witnesses Samin and Rasid leaning, on him. Like other witnesses, P.W.6 Naushad Ali also noticed injuries on the back of his head.
19. It has emerged from the statements of the eyewitnesses that the victim Mogol was initially taken to a Nursing Home where he was examined by P.W. 10 Dr. Kazi H.A. Hannan. The doctor pronounced him dead. Meanwhile, the Investigating Agency shifted him to S.S.K.M. Hospital. The attending doctor of S.S.K.M. Hospital also confirmed the death of Mogol @ Jahangir. The body was sent to the morgue for post mortem examination after initial inquest over the dead body. P.W. 12 Dr. Amitava Das. Autopsy Surgeon, conducted the post mortem on the dead body of Mogol. On examination, the doctor found two bullet injuries -one in the occipital region and the other on the right temporal bone. The doctor expressed his view that both the injuries were caused by bullets, with the injury on the occipital being considered fatal. The doctor also opined that the gutter fracture on right temporal was caused by grazing of a bullet. The doctor viewed the death to be homicidal and ante mortem in nature.
20. The eyewitnesses with one accord claimed that Mogol @ Jahangir was fired from close range. What the witnesses claimed finds due corroboration from the post mortem report. It is on evidence that several shots were fired by the miscreants. Bullets were pumped into his body. Two bullet injuries were found on the body of Mogol @ Jahangir. There was seizure of another bullet at the place of occurrence. That bullets were used is evidenced by post mortem report as well as by the seizure list. There is hardly any scope for believing that murder of Mogol was executed somewhere else and that too in different manner.
21. All the eyewitnesses were found to be residents of that locality. The area was also illumined by street lights, as disclosed by P.W.4 and P.W.5. P.W.4, P.W.5 & P.W.7 knew both the appellants before, The illumination of the area by street lights made their task of identification easier. P.W.3, the informant, knew the appellant. Mogol well. He also identified the other appellant Abuzar Hossain in the T.I. Parade. The learned Magistrate did everything to ensure fairness in the T.I. Parade. The way the T.I. Parade was conducted gives a fair indication that it was free from collusion. The identification of the appellant Abuzar Hossain was established at the threshold of the investigation. In the face of such concrete identification of the appellants by the eyewitnesses of the occurrence, it is hard to accept the suggestion of the defence that Mogol was murdered by some other miscreants elsewhere.
22. The identity of the informant was challenged during the trial as well as in course of the hearing of the appeal. P.W.3 claimed that he was known by Riaz as well as by Rasid Khan. P.W.3 claimed that he had been all along residing in B/43 Iron Gate Road. The other eyewitnesses, all residents of that locality, have confirmed that Riaz was also know as Rasid Khan. The Investigating Officer also confirmed that Riaz and Rasid are identical person, There is practically nothing on record to make us believe that an imposter had been introduced at the time of trial.
23. All the eyewitnesses namely P.W.3, P.W.4 & P.W.7 have given a vivid and true accounts of the incident, They had seen the occurrence from close range. Since they were the residents of the locality, they had no problem in identifying the assailants. There is nothing on record suggesting that they nurtured ill feelings and harboured animosity against the appellants. In other wards, they had no reason whatsoever for falsely implicating the appellants. The evidence of the eyewitnesses is found to be quite consistent. We do not share the view of Mr. Basu that the statements of the eyewitnesses are incongruous and contradictory. What the eyewitnesses stated about assault on Md. Jahangir @ Mogol finds due corroboration from the post mortem report. The medical report does confirm that the death of Md. Jahangir @ Mogol was caused by bullet injuries. One bullet caused fatal injuries on vital parts of the body with the other bullet grazing the outer surface of the body. There was recovery of one bullet from the place of occurrence. All these facts and circumstances do support the contention of the prosecution that the appellants and his associates fired at. Mogol from close range. What the witnesses stated at the time of investigation of the case was maintained all through. There was hardly any deviation of their stand. The Trial Court did the right thing in placing importance on the true and vivid account of the incident as narrated by the eyewitnesses of the incident. Due weightage was also given to the medical reports. The appellant called Abuzar Hossain was arrested after nearly a month, while the appellant Darain could be apprehended after years of absconsion. Their disappearance immediately after the commission of murder was also considered to be a relevant fact for assessing their involvement the commission of murder. There was proper appraisal of the evidence on record. We are afraid we cannot subscribe to the view that the Judgment was passed on conjecture and surmises. In our view, the well reasooed Judgment does not call for any interference. The appeal is thus found devoid of merit.
24. In the result, the criminal appeals are dismissed. The conviction and sentence under Section 302 read with Section 34 IPC passed against both the appellants are hereby affirmed.
25. The appellant Abuzar Hossain, now on bail, is to surrender within 15 days of passing of the Judgment to serve out the sentence. His bail bond stands cancelled.
26. Send down the LCR along with a copy of the Judgment to the Trial Court with the intimation that the learned Trial Court shall issue non Certified copy of this Judgment be made available on making proper application and after complying with all formalities.
Alok Kumar Basu, J.
27. I agree.