Judgment:
Debiprasad Sengupta, J.
1. This appeal was preferred against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Murshidabad in Sessions Trial No. 3 of March 1999 thereby convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a line of Rs. 5,000/-, in default to suffer R.I. for a further period of 6 months.
2. Prosecution case, in short, is that on 23.7.96 at about 7.00 a.m. there was a quarrel between the mother of the de facto complainant and the accused Ajab Ali over the dispute regarding some utensils. At the intervention of the de facto complainant the quarrel subsided to some extent and the de facto complainant (P.W. 1) proceeded towards the house of his father-in-law and within ten minutes thereafter he was informed by one Badsa Sk. that his mother was murdered. P.W. 1 immediately rushed to the place of occurrence and when his mother was being brought to the doctor she succumbed to her injuries on the way.
3. On the basis of a complaint lodged by one Sakhawat Ali (P.W.1) a case was registered with Bhagawangola Police Station under Section 302 IPC against the present appellant. On completion of investigation chargesheet was submitted and accordingly, charge was framed by the learned Trial Judge under Section 302 IPC against the present appellant.
4. To prove its case prosecution examined as many as 9 witnesses, while none was examined on behalf of the defence. The defence was a plea of innocence and false implication.
5. P.W. 1 Sakhawat Ali was the informant and he was uncle of accused Ajab Ali. Victim Berajuan Bewa was mother of P.W.1. This witness stated in his evidence that on the date of incident he saw that a quarrel was going on between his mother and accused Ajab Ali over the issue regarding some utensils. P.W. 1 tried to stop the quarrel and at his intervention the quarrel subsided to some extent and P.W.1 proceeded towards the house of his father-in-law. Within ten minutes thereafter he was informed by one Badsha that his mother was murdered. P.W.1 immediately rushed to the place of occurrence and saw his mother was lying in a pool of blood and she was conscious. This witness further stated that on being asked her mother stated to him that accused Ajab Ali fled away after inflicting injuries on her. People of the locality assembled at the place of occurrence and they apprehended the accused. In cross-examination this witness stated that he came to know from his mother that accused Ajab Ali assaulted her. He further stated in cross-examination that when he arrived at the place of occurrence he saw about 50 persons assembled there and he named Jakir, Bakkar, Soleman, Rahimuddin, Serai amongst them. He also stated that in presence of Monjur, Abbel, women folk of the families of Siraj and Ibrahim, his mother stated to him that accused Ajab was her assailant.
6. P.W. 2 was declared hostile and he stated that none reported to him as to how and by whom victim Berajun was murdered. He came to know at about 9 to 10 a.m. that grandmother of accused Ajab was murdered. P.W. 3 Abdul Mannan was a post-occurrence witness and after receiving the information he had been to the house of Berajun and saw her lying dead with bleeding injuries. He further deposed that Sakhawat (P.W.1) and Ajahar stated to him that Ajab Ali fled away after murdering Berajun Bewa. P.W.4 Sajahan Ali was declared hostile by the prosecution and he stated in his evidence that he did not know by whom Berajun Bewa was murdered. P.Ws. 5 and 6 were formal witnesses. P.W. 7 was the Investigating Officer, who submitted chargesheet after completion of investigation. P.W. 8 was the autopsy surgeon, who held postmortem on the deadbody of Berajun Bewa. On examination, he found the following injuries :
1) A deep sharp-cut wound over the right shoulder and axilla upto thoracic cavity.
2) One wound about 6' on the thoracic cavity on the left side of back.
3) 3' lacerated wound on the left knee infront.
P.W. 8 opined that the death of the victim was due to shock and haemorrhage caused by the wounds, which were ante-mortem in nature. In his opinion, such injuries might have been caused by any sharp-cutting weapon like 'hensua' and such injuries were sufficient to cause death of a person in ordinary course of nature.
7. P.W. 9 Ranjit Bhaskar was the scribe of the FIR and he stated that he wrote the complaint at the instance of Sakhawat Ali and he read over and explained the same to him.
8. Admittedly there was no eye-witness to the incident of assault and the case was sought to be established by the prosecution from the circumstantial evidence. It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn, must be conclusive in nature.
9. It was the contention of the learned Advocate of the appellant that the oral dying declaration made by the victim to her son (P.W.1) did not find place in the FIR which was lodged by P.W.1. Nowhere in the First Information Report, it was mentioned that the victim Berajun Bewa made any dying statement to her son before her death. It was further submitted that P.W.1 in his cross-examination stated that such dying declaration was made by the victim in presence of some villagers, whose names were specifically mentioned by P.W. 1. But none of those persons was examined by the prosecution.
10. Next argument advanced by the learned Advocate of the appellant was that the Investigating Officer did not send the blood-stained earth of the place of occurrence and wearing apparels of the deceased to FSL for examination and the same was very fatal for the prosecution. But we are unable to accept such contention. It is now well-settled that even it the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of such defect and to do so would tantamount to playing into the hand of investigating officer.
11. The learned Advocate of the appellant next submitted before us that from the evidence on record, it becomes clear that the incident of assault took place in course of altercation between the accused and the victim and such incident having been occurred in a spur of moment and heat of passion in course of a sudden quarrel, can be attributed with the knowledge that it would cause an injury which was likely to cause death and not with the intention to cause death of the victim. According to the learned Advocate of the appellant the offence, if at all committed by the accused, amounts to culpable homicide not amounting to murder punishable under Section 304 Part-II of the Indian Penal Code.
12. The learned Advocate appearing for the State submitted that the main witness in the present case was P.W. 1, son of the victim, who was corroborated by P.W.3. From the FIR as also from the evidence of P.Ws. 1 and 3, it appears that accused Ajab Ali murdered his grandmother Berajun Bewa by causing injuries on her body by 'hensua'. P.W. 1 was the own uncle of the accused. It is in the evidence of P.W.1 that on the day of incident at about 7 a.m. there was a quarrel between his mother and his nephew (appellant) over a dispute regarding some utensils. Such quarrel subsided at the intervention of P.W.1, who thereafter proceeded to the house of his father-in-law. Within ten minutes thereafter P.W.1 was informed by one boy named Badsa that his mother was killed by accused Ajab Ali. It is in the evidence of P.W.1 that after the incident the wife and mother of the accused came to P.W.1 and fell down at his feet. It is also in the evidence of P.W. 1 that the para people apprehended the accused, who after commission of murder took shelter in the cowshed of his brother-in-law. This piece of evidence was also not challenged by the defence. On scrutiny of the entire evidence of P.W. 1, we find no reason to disbelieve such a witness. We find nothing, by way of suggestion even, that P.W.1 had any enmity or previous grudge against the accused person.
13. We have heard the learned Advocates of the respective parties and we have scrutinised the entire evidence on record. Prosecution in the present case mainly relied upon the oral dying declaration made by the victim to her son P.W. 1. But we find that the story of dying declaration, which was an important material, having not been mentioned in the FIR lodged by P.W. 1 but disclosed for the first time in Court, was nothing but a subsequent improvement. It was the prosecution case that on receipt of information from Badsa Seikh regarding murder of his mother, P.W.1 rushed to the place of occurrence and found his mother conscious and when she was being brought to doctor, she succumbed to her injuries. P.W.1 stated further that before her death her mother made a dying statement before him in presence of Monjur, Abbel and women folk of the families of Siraj and Ibrahim. But we find that none of them was examined to support the above testimony of P.W.1. If the evidence of P.W.1 regarding the dying statement of his mother is taken to be true, the evidence of P.W.3 that he found the victim lying dead with bleeding injuries at the P.O. is incompatible and so no reliance should be placed on the evidence of P.W. 3. If P.W. 3 is believed the evidence of P.W.1 about seeing his mother conscious and declaration of his mother that accused after inflicting injuries fled away followed by his removal of the victim to doctor does not stand. It appears from the evidence of P.W. 3 that he came to learn the name of the assailant from P.W.1 and one Ajahar. But Ajahar was not examined by the prosecution.
14. Taking shelter by the accused in a cowshed immediately after the occurrence is undoubtedly an important circumstance, but that by itself cannot be a ground for holding the accused guilty of murder on the basis of uncorroborated testimony of P.W. 1 alone. We also find that the learned Trial Judge did not place any reliance upon the said oral dying declaration which was the sole basis of the prosecution case.
15. If the oral dying declaration is excluded from evidence then only thing which remains is the uncorroborated testimony of P.W.1. In our considered view, the evidence of such a witness does not inspire confidence to accept him as a reliable witness to sustain the order of conviction recorded against the appellant. The evidence is too weak to sustain the order of conviction and as such we extend the benefit of doubt to the appellant.
16. In view of the discussion made above, we are clearly of the view that the prosecution case has not been proved beyond reasonable doubt.
17. The appeal is accordingly allowed. The impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Murshidabad in Sessions Trial No. 3 of March, 1999 is hereby set aside and the appellant is acquitted of the charge framed against him and he will be set at liberty forthwith if not required in connection with any other case.
18. A copy of this judgment along with the LCR may be sent down to the Court below immediately.
Arun Kumar Bhattacharya, J.
19. I agree.