Judgment:
Partha Sakha Datta, J.
1. The appellant Jarahim Sk. in CRA No. 186 of 2002 and the appellants Loknath Mondal and Badruddin Sheikh in CRA No. 192 of 2002 assail the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Rampurhat of the district of Birbhum in Sessions Trial No. 3(12) of 1996 arising out of Sessions Case No. 11 of 1992 under Section 302/347/384 of the IPC.
2. The appellant Jarahim Sk. was sentenced to suffer imprisonment for life with a fine of Rs. 5,000/- with default stipulation under Section 302 IPC, rigorous imprisonment for two years with a fine of Rs. 1,000/- with the default stipulation on account of the offence under Section 347 IPC, and rigorous imprisonment for two years on account of the charge under Section 384 of the IPC. The appellants Md. Badruddin and Loknath Mondal were sentenced to suffer rigorous imprisonment for two years with a fine of Rs. 1,000/- with default stipulation on account of the charge under Section 347 of the IPC and rigorous imprisonment for two years each on account of the charge under Section 384 of the IPC.
3. P.W.10 Ala Mala Ranga Rao, a driver of the truck No. ABK-9239 with his assistant Halabul Rahaman was proceeding by the said truck from Bagdogra to Andhra Pradesh on 3.7.1988 and when they reached near Telda Bridge under Rampurhat P.S. a police party consisting of three police personnel being armed with guns stopped the truck and wanted bribe from Halabul Rahaman and had a hot exchange of words with him. One of the police personnel came in front of the truck and fired against Halabul Rahaman without any provocation, which pierced into his head through the front window screen of the vehicle and Halabul fell down inside the truck. P.W.10 left the truck out of fear and chanced to meet P.W.I Kamru Arjun Rao, another truck driver of Andhra Pradesh at a little distance and informed him of the incident and then returned back to the Telda Bridge and then proceeded with the vehicle to get the injured Halabul Rahaman admitted in the hospital who on the way near Hira hotel died.
4. This was the FIR lodged by P.W.10 with the Rampurhat Police Station at 22.15 hours on 3.7.1988 which upon registration of Rampurhat P. S. case No. 1 dated 3.7.1988 under Section 302/34 of the IPC against the three police personnel on duty at Telda Bridge submitted chargesheet against them under Section 347/ 384/ 302/ 34 of the IPC and the learned Trial Court upon conclusion of trial convicted the appellant Jarahim Sk. under all the sections of the law as aforesaid and convicted the other two appellants under Section 347/ 384 of the IPC and passed sentence in the manner as aforesaid.
5. Of the 11 witnesses examined by the prosecution it is P.W.10, FIR maker who according to the prosecution is the star witness of the prosecution case inasmuch as occurrence took place in his presence and it was he who identified the appellant Jarahim and another appellant Badruddin in the T.I. Parade in jail conducted by P.W.5 Sri T.K. Mukherjee, Metropolitan Magistrate, Calcutta on 18.7.1988 telling that it was the appellant Jarahim who fired from his firearms and it was the appellant Badruddin who stopped the vehicle, demanded Us. 5/- and also fired against the khalasi (Halabul) who died in the hospital. The place of occurrence is said to be Telda Bridge on the way between Rampurhat and Suri and the vehicle in question was being driven by P.W.10 towards Andhra Pradesh via Rampurhat. Further, according to the prosecution evidence of P.W.1 Kamru Arjun Rao, a fellow driver of P.W.10 is also important in this that in terms of FIR P.W.10 immediate after the incident, leaving the vehicle at the spot, proceeded a little to meet P.W.I and informed him of the incident and moreover FIR was lodged in the presence of P.W.1, and the FIR which was written in Bengali script (Ext.1) but in Hindi language was signed by P.W.10 and on the left hand side of three pages of the FIR signature of P.W.1 also appears and P.W.I admits having signed in the FIR although in course of trial P.W.1 turned hostile and denied having stated to the I.O. that P.W.10 had stated to him the entire narration of the incident.
6. From the evidence of P.W.1 it appears that at 6 p.m. when he was in a hotel after stopping his own vehicle to take meal he heard that a man of Andhra Pradesh had died. On being cross-examined by the prosecution he said that he came to know P.W.10 only at the police station where he also saw the deadbody of Halabul and at the police station he put his signature in the FIR. Therefore, an important witness to the prosecution case whose evidence would have been of a great corroborative value did not favour the prosecution. Evidence of P.W.2 Gutta Ranga Rao, the owner of the vehicle is not of relevance since on being informed of the incident through a telegram he came to Rampurhat Police Station to take interim custody of the vehicle. P.W.3 is Dr. Manabbrata Majumdar who in course of holding post-mortem examination on the body of the deceased found one bullet injury on the vault of the skull which had entered through the frontal bone and gone out through the occipital bone disrupting frontal, both parietal and front part of the occipital bone with brain matter draining out. The injures were, according to the doctor, ante mortem and homicidal. According to P.W.4 Sudhin Kundu who was the S.I. of Police of Rampurhat Police Station at the material time the three appellants--Jarahim and Badruddin being NVF and Loknath Mondal being Homeguard--were deputed to Telda Bridge falling under Rampurhat Police Station in connection with patrol duty in terms of command certificate (Ext.9) at 4.30 p.m. with arms and ammunitions. P.W.4 says that when the three appellants returned to the police station Jarahim submitted 19 rounds of live cartridges and one round of empty cartridge, while Badruddin Sk. deposited 20 rounds of live cartridges along with two rifles. Loknath was not provided with any arms. An important piece of evidence of P.W.4 is that Jarahim told the O.C. that one round was fired by him against a person who died. As per instruction of the O.C. (P.W.9) Abdul Kasem, Benoy Bhusan Roy P.W. 11 another S.I. of Police of the police station prepared a seizure list (Ext. 10) in respect of the cartridges seized from them and then P.W.9 recorded a G. D. being GDE No. 91 dated 3.7.1988 (Ext. 11). It was P.W.4 who received the complaint (Ext.1) as was sent by P.W.9, the O.C. of the police station for starting a case through a police driver Nemai Majumdar. P.W.4 held inquest on the deadbody of the deceased and prepared inquest report (Ext.15). Now, as per cross-examination of P.W.4 the three appellants were deputed to Childa Bridge under G. D. No. 87 dated 3.7.1988 and Childa Bridge is situated on the way between Rampurhat and Tarapith Temple, while Telda Bridge is situated at Rampurhat--Mollarpur Super Highway and the distance between the Telda Bridge and Childa bridge is 10 kilometers and Telda Bridge is at a distance of 10 kilometers from Hira Hotel. P.W.6 Abhas Nandi, another S.I. of Police of Rampurhat Police Station says that three appellants who were allotted patrol duty at Rampurhat-Mollarpur road with rifle and ammunitions in their possession on their return to police station told P.W.9 that the appellant Jarahim fired a shot at a khalasi of a truck following altercation and the bullet that hit the khalasi on his forehead took his life and this was the version of Jarahim himself. When cross-examined he says that he does not remember the exact words used by Jarahim before the O.C. Hiralal Shaw (P.W.7) says in his evidence that a truck came in front of his hotel and he was told that the khalasi had been shot at. His evidence is of no value. P.W.8, S.I. Abdul Jalil submitted charge-sheet after collection of FSL report. P.W.9 Abdul Kasem, the O.C. of the P.S. says that on 3.7.1988 he deputed the three appellants on patrol duty on the road at Telda Bridge between Rampurhat and Mollarpur. He speaks of the seizure of arms and ammunitions from the appellants. He had been to Hira Hotel near Rampurhat Sub-Divisional Hospital where he recorded the statement of P.W. 10 (Ext.1). Now, this witness has said that on examination of the rifles he could detect recent firing by smelling and also from the empty cartridge showing marks of firing. The appellant Loknath Mondal narrated the incident to him and subsequently the other two appellants namely Jarahim Sk. and Md. Badruddin upon interrogation admitted the fact of firing. According to this witness, he stated before the I.O. that on his interrogation the appellants admitted their guilt. P.W.11is the main I.O. of the case.
7. The star witness P.W. 10 says in his evidence that when at about 5 p.m. he with his lorry reached near the Telda Bridge at some distance from Rampurhat three police personnel stopped his vehicle, demanded Rs. 5/-from him and he offered Rs. 2/- but then they did not accept Rs. 2/- and they fired against the other driver whose name has been recorded in the deposition as Alabul Rahim.
8. Learned Advocates for the appellants argued that having scanned the evidence of P.W.4, P.W.6 and P.W.9 it does not become certain that occurrence took place at Telda Bridge because as per evidence of P.W.4 they were deputed to Childa Bridge under G. D. Entry No. 87 dated 3.7.1988 and the distance between the Childa Bridge and the Telda Bridge is 10 kilometers. Childa Bridge is on the way between Rampurhat and Tarapith Temple while Telda Bridge is situated at Rampurhat-Mollarpur Super Highway. This submission does not appear to be acceptable because the G. D. Entry No. 87 dated 3.7.1988 has not been produced. Moreover, P.W.4 himself says in his cross-examination that the G. D. Entry No. 51/1 mentions the names of the appellants deputed to Telda Bridge on 2.7.1988. As per G. D. Entry No. 91 dated 3.7.1988 the O.C. Rampurhat P. S. (P.W.9) has himself, recorded that the appellants were deputed to perform picket duty at Telda Bridge vide C.C. No. 346088. G. D. Entry No. 95 dated 3.7.1988 speaks of the place of occurrence at Telda Bridge. In the command certificate it has been clearly recorded that the appellants were deputed to Telda Bridge on 3.7.1988. P.W.4 has himself said in his examination-in-chief that the appellants were deputed to Telda bridge. The O.C. himself says that the duty of the appellants was on the way from Rampurhat to Mollarpur. Having regard to the G. D. Entry No. 91 dated 3.7.1988 command certificate No. 346088 dated 3.7.1988, G. D. Entry No. 95 dated 3.7.1988, evidence of P.W.6, P.W.9 and P.W.10 it becomes indutibly clear that the place of occurrence is at Telda Bridge and not at Childa Bridge.
9. It was argued that evidence has it of P.W.I that P.W.10 does not know Hindi and is a Telegu speaking person and it was impossible for P.W.10 either to narrate the facts in the FIR in Hindi or to identify the suspects in the T.I. Parade in Hindi. We are not much impressed by the arguments because the exact words stated by P.W.10 before the learned Magistrate during T.I. Parade were in Hindi and even though P.W.10 belongs to Andhra Pradesh a little amount of working knowledge of Hindi cannot be unexpected of him because by profession he is a truck driver engaged in driving truck from one province to another and it is only the language of Hindi by which he communicates with people of different provinces. Therefore, it cannot be said that P.W.10 has absolutely no idea of Hindi. P.W.10 has himself said that as a lorry driver he has a working knowledge of Hindi.
10. We, however, find that the appeal would succeed mainly on two points. The learned Trial Court based his order of conviction, firstly, on the ground that the three appellants had made confessional statement leading to recovery under Section 27 of the Evidence Act and such confession being admissible in evidence would point to the guilt of the appellants. We are in complete disagreement with the learned Trial Court. According to P.W.4 and P.W.6 the alleged confessional statement was made to P.W.9, the O.C. of Rampurhat Police Station. P.W.4 said that while returning the rifle and the cartridges the appellant Jarahim told P.W.9 that he had fired against a person. P.W.6 has said that Jarahim told P.W.9 that he had fired a shot at a khalasi of truck following altercation but contrary to the evidence of P.W.4 and P.W.6, P.W.9, the O.C. of Rampurhat P.S. stated that on interrogation appellants Jarahim and Badruddin admitted their guilt. None of the three witnesses namely P.W.4, P.W.6 and P.W.11 says what exactly was told by the appellant Jarahim or Badruddin. If the statement was allegedly made before P.W.9 then it is the statement of P.W.9 on oath that appellants Jarahim and Badruddin upon interrogation admitted their guilt. This cannot be said to be a confessional statement, far less a statement under Section 27 of the Evidence Act in view of the fact that the provision of Section 27 of the Evidence Act does have no manner of application to the facts and circumstances of the case. It was not a case of a statement of an accused leading to recovery. The appellants allegedly made statement before the police at the police station while depositing the rifles and ammunitions and in the circumstances we are unable to agree with the learned Trial Court that any conviction can be based upon such alleged statement, the exact version of which has not been told by P.W.9, apart from legality of such alleged statement.
11. The other pillar of the prosecution evidence is the evidence of P.W.10 who according to the prosecution had identified the appellants Jarahim and Badruddin in the T.I. Parade before the learned Magistrate and according to the learned Magistrate (P.W.5) Jarahim was identified by P.W.10 with the words that he fired from his firearm and appellant Badruddin stopped the vehicle, demanded money and then fired against the khalasi. The third appellant Loknath Mondal was not identified in the T.I. Parade. Now, it is the established principle of law that unless the accused persons are identified in the Court during trial by witnesses identification of the suspects in course of investigation before the learned Magistrate in the jail will be of no help. Reference in this connection can be had to a decision in Umesh Kamat v. State of Bihar reported in : 2005CriLJ908 . Here in the instant case P.W.10 has categorically said in his evidence-in-chief that he was unable to identify the person who fired shot because the incident took place way back in 1988. Therefore, non-identification of the appellant during trial in spite of identification in the T.I. Parade during investigation of the case has totally destroyed the prosecution case and we are unable to agree with the learned Trial Court that identification of the suspects in the investigation stage at the T.I. Parade would suffice to warrant conviction without any substantive identification before the Court. Law is well settled that identification of the suspects in the T.I. Parade is in nature of corroborative value, the substantive piece of evidence being identification of the accused by witnesses before the Court during trial of a case. With this, the entire prosecution case falls down and save and except P.W.10 there is no other witness amongst the eleven witnesses examined by the prosecution who could be able to connect the appellants with the offence complained of although it could not be disputed that Halabul was shot dead from the firearms at Telda Bridge.
12. Having regard to the facts and circumstances of the case as well as evidence on record we are of the opinion that the prosecution case could not be proved and accordingly the appeal succeeds. We, thus, allow the appeal and set aside the judgment and order of the learned Trial Court, acquit the three appellants of the respective charges, set them at liberty and discharge the appellants Md. Badruddin and Loknath Mondal from their bail bonds.
13. A copy of the judgment be sent to the concerned Correctional Home where the appellant Jarahim Sk. is lodged for information to the Superintendent of that Correctional Home and for necessary action. A copy of the judgment and order shall also be sent along with the LCR to the learned Trial Court for information and necessary action.
Pravendu Narayan Sinha, J.
14. I agree.
Later:
15. Urgent xerox certified copy of this order, if applied for, he given to the learned Advocates for the appellants as expeditiously as possible.