Md. SamsuddIn @ Kalia and Others Vs. the State of West Bengal - Court Judgment

SooperKanoon Citationsooperkanoon.com/950740
CourtKolkata High Court
Decided OnApr-04-2012
Case NumberC.R.A. NO. 262 WITH 266 OF 1995
Judge ASHIM KUMAR ROY & ASIM KUMAR RAY
AppellantMd. SamsuddIn @ Kalia and Others
RespondentThe State of West Bengal
Excerpt:
ashim kumar roy, j. this criminal appeal arises out of a judgment and order passed by the learned additional sessions judge, 7th court, alipore, south 24-parganas in sessions trial no. 5 (4) 1995, wherein under the appellants, viz. sakil ahmed, sk. feku and md. samsuddin @ kalia were convicted under section 302/34 of the indian penal code and sentenced to suffer imprisonment for life with fine and default clause. 2. the prosecution case runs as follows; on november 28, 1994 in the early morning a dead body of an unidentified young boy aged about 15/16 years with marks of multiple bleeding injuries on head and face was found lying in a pool of blood on the footpath of surwady avenue by the side of the eastern boundary wall of lady brabourne college. those injuries during post-mortem examination were found to be antemortem and homicidal in nature. in course of investigation the said dead body was identified that of one maqsud alam and after examining one nandu roy, who was an eyewitness to the occurrence the complicity of the appellants were transpired. during further examination on 5.2.1994 police arrested sakil ahmed and on the very next day, i.e. on 6.12.1994 two other accuseds sk. feku and md. samduddin @ kalia were arrested. the accused md. samsuddin @ kalia made a confession admitting the guilt before a judicial magistrate and his such confessional statement was recorded under section 164 crpc. 3. during the hearing of this appeal a claim of juvenility was raised by all the three appellants and accordingly this court remanded back the matter to the trial court for determination of their age in accordance with the provisions of juvenile justice (care and protection of children) act, 2000. pursuant to the aforesaid order the trial court held an enquiry and found while the appellants sk. feku and sakil ahmed were juveniles on the date of the alleged incident but the claim of juvenility of the accused md. samsuddin @ kalia was rejected. 4. the findings of the trial court that the appellants sk. feku and sakil ahmed were juveniles on the date of the alleged incident was not disputed from the side of the state. we have also gone through the order of the trial court and in our opinion there is nothing wrong and such finding is sustained. 5. however, the learned advocate of the appellant md. samsuddin @ kalia vehemently urged before this court that the findings of the trial court that the appellant md. samsuddin was not juvenile on the ate of the alleged incident was wholly erroneous and not in accordance with law and as such the same to be quashed. 6. now, having regard to the proceeding of enquiry on the point of determination of juvenility, we find that during enquiry the birth certificate of md. samsuddin @ kalia was exhibited in court from the side of the defence. according to the said certificate the date of birth of md. samsuddin @ kalia was registered with the prescribed authority under the registration of births and deaths act, 1969 on june 28, 1996 and same was issued on june 29, 1996. however the trial court taking into account the provisions of sub-section (3) of section 13 of the registration of births and deaths act, 1969 and in the light of the evidence of deputy manager, department of health, calcutta municipal corporation who was examined during such enquiry declined to act thereupon and on the other hand relying on the ossification test report submitted by a medical board came to the conclusion the appellant md. samsuddin @ kalia was aged about 20 years on the date of the occurrence and therefore was not a juvenile at that relevant time. in this regard it is most pertinent to note while the trial court on july 12, 1995 delivered his judgment holding the appellant guilty for an offence punishable under sections 302/34 ipc, the appellant got his date of birth registered with the prescribed authority on june 28, 1996 and the said certificate was issued on the next day, i.e. on june 29, 1996. in view of the fact the date of birth of the appellant was registered with the prescribed authority long after the order of conviction was passed against him, the trial court has not committed any mistake in refusing to act thereupon and decided the question of claim of juvenility of the appellant on the basis of ossification test report. we do not find any force in the contention of the learned advocate of the appellant that much before the registration of his date of birth with the prescribed authority, the appellant in his examination under section 313 crpc during the trial disclosed his age to the court and according to such disclosure undoubtedly he was a juvenile in conflict with law on the date of the alleged occurrence and as such the trial court has committed a gross mistake in law in not relying on the said birth certificate. we also do not find any force in the submissions of the learned lawyer of the appellant that when there is a birth certificate issued by the prescribed authority the trial court erroneously determine the age of the appellant on the basis of ossification test report which is not permissible under the provisions of the juvenile justice (care and protection of children) act, 2000. since the date of birth of the appellant was registered not only after the incident but long after the delivery of the judgment in which he was convicted the authenticity of such document has become doubtful and in that view of the matter the trial court having relied on his ossification test report in our opinion has not committed any mistake. the findings of the trial court that the appellant was not juvenile on the date of the alleged occurrence is therefore sustained. 7. now, coming to the merits of the case we find the prosecution to establish the charge against the appellant, in the trial examined as many as on 17 witnesses but defence examined none. 8. in this case there is no controversy that the victim maqsud alam died due to the injuries which are ante-mortem and homicidal in nature. neither during trial nor in this appeal such fact has been disputed from the side of the defence. we have also carefully gone through the post-mortem report and the evidence of autopsy surgeon and have no doubt as regards to the same. 9. now entering into the merits of the case we find essentially the case of the prosecution rests on the evidence of pw/12 nandu roy an eyewitness to the occurrence and on the judicial confession of the appellant md. samsuddin @ kalia recorded by pw/14 sukdhev singh anand. to prove the motive behind the murder the prosecution examined pw/6 waheada khatoon, the mother of the victim. 10. the pw/1 is the official photographer and pw/2 is a plan maker. the pw/3 is a doctor who declared the victim dead when he was brought before her at national medical college and hospital. the pw/4 was the then officer-in- charge of beniapukur police station conducted the initial investigation. the pw/5 is a shopkeeper and near his shop the dead body was found lying and a seizure witness. the pw/7 is a neighbour of the victim and identified his dead body. the pw/8 is a seizure witness. the pw/9 is a doctor and was attached to the department of forensic and state medicine and was the vice-principal of n.r.s. medical collage, calcutta. the pw/10 dr. tapas kumar bose held the autopsy. the pw/ 11 is a police constable. the pw/13 is attached to the forensic science laboratory. the pw/15 is the investigating officer of the case. the pw/16 is the deputy manager, system control department, calcutta electric supply limited. the pw/17 is a police officer attached to the detective department, lalbazar who arrested the accused persons. 11. the learned counsel appearing on behalf of the appellant assailed the impugned judgment on the following reasons; (a) the trial court illegally admitted into evidence the exhibit –7 as the first information of the case because prior to the recording of the fir investigation was commenced. (b) the ocular account of assault is totally inconsistent with the medical evidence as regards to the injuries found in the person of the victim. (c) the motive behind the murder as alleged by the mother of the victim pw/6 is not at all reliable because the same was disclosed long after the alleged incident. (d) the alleged eyewitness to the occurrence pw/12 is not at all reliable who remain silent for more than a day and never disclosed the incident to anyone until was examined by the police. (e) although in and around the place of occurrence, a footpath, admittedly many persons used to sleep at night but no independent witness was examined. (f) lastly, it is submitted that in the forwarding report of sakil ahmed who was first arrested in connection with the case in question there is no disclosure about the involvement of the appellant although by that time both the pw/12 and the accused sakil ahmed was examined by the police which goes to show that the appellant has been implicated falsely. on the other hand, the learned counsel appearing on behalf of the state vehemently contended the point raised by the learned counsel for the appellant are not tenable. he further submitted there is nothing on record which may justify to disbelieve the pw/12 nandu roy an eyewitness to the occurrence and further contended an order of conviction can very well be based on the testimony of a lone witness. he then contended that the voluntary judicial confession of the appellant completely justify his conviction. lastly, it is contended there is no inconsistency in the ocular account of assault and the medical evidence and motive behind the murder has been proved beyond all reasonable doubt. 12. the pw/12 nandu roy is the lone eyewitness to the occurrence and although there is no constraint in law to come to a finding of guilt of any accused on the basis of single witness but in such case the court must be on guard and only after carefully examining the evidence of such witness if it is found the witness is wholly reliable the matter ends there and on that basis conviction is always justified but if it is found the witness is partly reliable then of course corroboration is necessary. when such witness is found completely unreliable result will be acquittal. 13. now coming to the evidence of pw/12 nandu roy, we find that he was subjected to lengthy cross-examination but the defence except suggesting that what is telling is not truth nothing has been brought out from his evidence to show that he is not a truthful witness. in our opinion disclosure of the facts to the police by the pw/12 on the next night was of no consequences as the reason for delay was there. we find according to the said witness while leaving the spot the accused persons threatened him to kill if he disclosed the incident to anyone and such evidence of the was never challenged by the defence during his cross-examination. we further find during cross-examination it was suggested to him that he stated to the police that seeing the accused persons assaulting maqsud he fled away, now from such suggestion at least it may very well be concluded that by such suggestion the defence admitted his presence at the time of the incident when the victim was being assaulted by the accused persons. we do not find any contradiction was brought out by the defence between his evidence in court and what he stated to the police during investigation. so far as the question of street light is concerned, the prosecution by examining pw/16 proved that at the time of the occurrence there was no interruption of electricity and the place of occurrence was sufficiently illuminated by the light of street lamps. apart from above there is a judicial confession of appellant md. samsuddin @ kalia recorded by the pw/14 sukdhev singh anand, which is marked as exhibit – 14. we have very carefully gone through the said statement and we do not find any mistake on the part of the judicial magistrate in recording the same. there is nothing to doubt that such confession was voluntary and true. the pw/14, the judicial magistrate who recorded the confession was sufficiently cross-examined and there is no reflection that the confession recorded by him was not voluntary. the result of a trial does not depend on quantity but on the quality of evidence and as we have found that the evidence of pw/12 nandu roy is very much reliable and he is a witness of truth and his evidence is further corroborated by the judicial confession of the appellant md. samsuddin @ kalia non-examination of those persons who were also sleeping at the place of occurrence cannot be said to be fatal for the prosecution case. we have also carefully examined the ocular account of assault in the light of the medical evidence and do not find there is any conflict. non-disclosure of the appellant’s involvement in the forwarding report of other two co-accuseds is of no significance, as law does not need the same. in our opinion the prosecution has been able to prove its case beyond all reasonable doubt and the impugned order of conviction of the appellant deserve no interference. we have found no wrong in the findings of the trial court that on the date of the alleged occurrence the appellant md. samsuddin @ kalia was not a juvenile. accordingly, the order of sentence passed against the appellant md. samsuddin @ kalia is sustained. there is no dispute that on the date of the alleged occurrence november 28, 1994 the appellant sk. feku and sakil ahmed were below the age of 18 years. therefore according to the provisions of section 2 (l) of the juvenile justice (care and protection of children) act, 2000, they were ‘juvenile in conflict with law’ and in terms of explanation to section 20 of the said act, the appellants ought to be treated as ‘juvenile in conflict with law’ although at the time of the commission of the offence neither the juvenile justice (care and protection of children) act, 2000 was enacted nor the provisions of section 2 (l) was brought into the statute book and this field was governed by the juvenile justice act, 1986. now for the reasons stated above, the appellants are to be treated as the ‘juvenile in conflict with law’ on the date of commission of the alleged offence, even if they are found to have committed an offence but in view of the mandate of section 16 of the said act, imprisonment for any term which may extend to imprisonment for life or committed to prison in default to payment of fine is absolutely illegal and without jurisdiction. we, therefore, set aside the sentence imposed against the appellants sk. feku and sakil ahmed. this court has been informed that the appellants sk. feku and sakil ahmed were detained in jail for a period which is more than the maximum period for which a ‘juvenile in conflict with law’ may be confined to a special home, accordingly, it is directed, if the said two appellants are not wanted in connection with any other case, they shall be released from jail forthwith. in the result while the appeal preferred by md. samsuddin @ kalia is dismissed, the appeal preferred by the remaining two appellants sk. feku and sakil ahmed stands allowed to the extent as above. the office is directed to communicate this order to the trial court and send down the records at once. criminal section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.
Judgment:

ASHIM KUMAR ROY, J.

This criminal appeal arises out of a judgment and order passed by the learned Additional Sessions Judge, 7th Court, Alipore, South 24-Parganas in Sessions Trial No. 5 (4) 1995, wherein under the appellants, viz. Sakil Ahmed, Sk. Feku and Md. Samsuddin @ Kalia were convicted under Section 302/34 of the Indian Penal Code and sentenced to suffer imprisonment for life with fine and default clause.

2. The prosecution case runs as follows;

On November 28, 1994 in the early morning a dead body of an unidentified young boy aged about 15/16 years with marks of multiple bleeding injuries on head and face was found lying in a pool of blood on the footpath of Surwady Avenue by the side of the eastern boundary wall of Lady Brabourne College. Those injuries during post-mortem examination were found to be antemortem and homicidal in nature. In course of investigation the said dead body was identified that of one Maqsud Alam and after examining one Nandu Roy, who was an eyewitness to the occurrence the complicity of the appellants were transpired. During further examination on 5.2.1994 police arrested Sakil Ahmed and on the very next day, i.e. on 6.12.1994 two other accuseds Sk. Feku and Md. Samduddin @ Kalia were arrested. The accused Md. Samsuddin @ Kalia made a confession admitting the guilt before a Judicial Magistrate and his such confessional statement was recorded under Section 164 CrPC.

3. During the hearing of this appeal a claim of juvenility was raised by all the three appellants and accordingly this Court remanded back the matter to the Trial Court for determination of their age in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000.

Pursuant to the aforesaid order the Trial Court held an enquiry and found while the appellants Sk. Feku and Sakil Ahmed were juveniles on the date of the alleged incident but the claim of juvenility of the accused Md. Samsuddin @ Kalia was rejected.

4. The findings of the Trial Court that the appellants Sk. Feku and Sakil Ahmed were juveniles on the date of the alleged incident was not disputed from the side of the State. We have also gone through the order of the Trial Court and in our opinion there is nothing wrong and such finding is sustained.

5. However, the learned advocate of the appellant Md. Samsuddin @ Kalia vehemently urged before this Court that the findings of the Trial Court that the appellant Md. Samsuddin was not juvenile on the ate of the alleged incident was wholly erroneous and not in accordance with law and as such the same to be quashed.

6. Now, having regard to the proceeding of enquiry on the point of determination of juvenility, we find that during enquiry the birth certificate of Md. Samsuddin @ Kalia was exhibited in Court from the side of the defence. According to the said certificate the date of birth of Md. Samsuddin @ Kalia was registered with the prescribed authority under the Registration of Births and Deaths Act, 1969 on June 28, 1996 and same was issued on June 29, 1996.

However the Trial Court taking into account the provisions of sub-section (3) of Section 13 of the Registration of Births and Deaths Act, 1969 and in the light of the evidence of Deputy Manager, Department of Health, Calcutta Municipal Corporation who was examined during such enquiry declined to act thereupon and on the other hand relying on the ossification test report submitted by a medical board came to the conclusion the appellant Md. Samsuddin @ Kalia was aged about 20 years on the date of the occurrence and therefore was not a juvenile at that relevant time. In this regard it is most pertinent to note while the Trial court on July 12, 1995 delivered his judgment holding the appellant guilty for an offence punishable under Sections 302/34 IPC, the appellant got his date of birth registered with the prescribed authority on June 28, 1996 and the said certificate was issued on the next day, i.e. on June 29, 1996. In view of the fact the date of birth of the appellant was registered with the prescribed authority long after the order of conviction was passed against him, the Trial Court has not committed any mistake in refusing to act thereupon and decided the question of claim of juvenility of the appellant on the basis of ossification test report.

We do not find any force in the contention of the learned advocate of the appellant that much before the registration of his date of birth with the prescribed authority, the appellant in his examination under Section 313 CrPC during the trial disclosed his age to the Court and according to such disclosure undoubtedly he was a juvenile in conflict with law on the date of the alleged occurrence and as such the Trial Court has committed a gross mistake in law in not relying on the said birth certificate. We also do not find any force in the submissions of the learned lawyer of the appellant that when there is a birth certificate issued by the prescribed authority the Trial Court erroneously determine the age of the appellant on the basis of ossification test report which is not permissible under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. Since the date of birth of the appellant was registered not only after the incident but long after the delivery of the judgment in which he was convicted the authenticity of such document has become doubtful and in that view of the matter the Trial Court having relied on his ossification test report in our opinion has not committed any mistake. The findings of the Trial Court that the appellant was not juvenile on the date of the alleged occurrence is therefore sustained.

7. Now, coming to the merits of the case we find the prosecution to establish the charge against the appellant, in the trial examined as many as on 17 witnesses but defence examined none.

8. In this case there is no controversy that the victim Maqsud Alam died due to the injuries which are ante-mortem and homicidal in nature. Neither during trial nor in this appeal such fact has been disputed from the side of the defence. We have also carefully gone through the post-mortem report and the evidence of autopsy surgeon and have no doubt as regards to the same.

9. Now entering into the merits of the case we find essentially the case of the prosecution rests on the evidence of PW/12 Nandu Roy an eyewitness to the occurrence and on the judicial confession of the appellant Md. Samsuddin @ Kalia recorded by PW/14 Sukdhev Singh Anand. To prove the motive behind the murder the prosecution examined PW/6 Waheada Khatoon, the mother of the victim.

10. The PW/1 is the official photographer and PW/2 is a plan maker. The PW/3 is a doctor who declared the victim dead when he was brought before her at National Medical College and Hospital. The PW/4 was the then Officer-in- Charge of Beniapukur Police Station conducted the initial investigation. The PW/5 is a shopkeeper and near his shop the dead body was found lying and a seizure witness. The PW/7 is a neighbour of the victim and identified his dead body. The PW/8 is a seizure witness. The PW/9 is a doctor and was attached to the Department of Forensic and State Medicine and was the Vice-Principal of N.R.S. Medical Collage, Calcutta. The PW/10 Dr. Tapas Kumar Bose held the autopsy. The PW/ 11 is a police constable. The PW/13 is attached to the Forensic Science Laboratory. The PW/15 is the Investigating Officer of the case. The PW/16 is the Deputy Manager, System Control Department, Calcutta Electric Supply Limited. The PW/17 is a police officer attached to the Detective Department, Lalbazar who arrested the accused persons.

11. The learned counsel appearing on behalf of the appellant assailed the impugned judgment on the following reasons;

(a) The Trial Court illegally admitted into evidence the Exhibit –7 as the First Information of the case because prior to the recording of the FIR investigation was commenced.

(b) The ocular account of assault is totally inconsistent with the medical evidence as regards to the injuries found in the person of the victim.

(c) The motive behind the murder as alleged by the mother of the victim PW/6 is not at all reliable because the same was disclosed long after the alleged incident.

(d) The alleged eyewitness to the occurrence PW/12 is not at all reliable who remain silent for more than a day and never disclosed the incident to anyone until was examined by the police.

(e) Although in and around the place of occurrence, a footpath, admittedly many persons used to sleep at night but no independent witness was examined.

(f) Lastly, it is submitted that in the forwarding report of Sakil Ahmed who was first arrested in connection with the case in question there is no disclosure about the involvement of the appellant although by that time both the PW/12 and the accused Sakil Ahmed was examined by the police which goes to show that the appellant has been implicated falsely.

On the other hand, the learned Counsel appearing on behalf of the State vehemently contended the point raised by the learned Counsel for the appellant are not tenable. He further submitted there is nothing on record which may justify to disbelieve the PW/12 Nandu Roy an eyewitness to the occurrence and further contended an order of conviction can very well be based on the testimony of a lone witness. He then contended that the voluntary judicial confession of the appellant completely justify his conviction. Lastly, it is contended there is no inconsistency in the ocular account of assault and the medical evidence and motive behind the murder has been proved beyond all reasonable doubt.

12. The PW/12 Nandu Roy is the lone eyewitness to the occurrence and although there is no constraint in law to come to a finding of guilt of any accused on the basis of single witness but in such case the Court must be on guard and only after carefully examining the evidence of such witness if it is found the witness is wholly reliable the matter ends there and on that basis conviction is always justified but if it is found the witness is partly reliable then of course corroboration is necessary. When such witness is found completely unreliable result will be acquittal.

13. Now coming to the evidence of PW/12 Nandu Roy, we find that he was subjected to lengthy cross-examination but the defence except suggesting that what is telling is not truth nothing has been brought out from his evidence to show that he is not a truthful witness. In our opinion disclosure of the facts to the police by the PW/12 on the next night was of no consequences as the reason for delay was there. We find according to the said witness while leaving the spot the accused persons threatened him to kill if he disclosed the incident to anyone and such evidence of the was never challenged by the defence during his cross-examination. We further find during cross-examination it was suggested to him that he stated to the police that seeing the accused persons assaulting Maqsud he fled away, now from such suggestion at least it may very well be concluded that by such suggestion the defence admitted his presence at the time of the incident when the victim was being assaulted by the accused persons. We do not find any contradiction was brought out by the defence between his evidence in Court and what he stated to the police during investigation. So far as the question of street light is concerned, the prosecution by examining PW/16 proved that at the time of the occurrence there was no interruption of electricity and the place of occurrence was sufficiently illuminated by the light of street lamps. Apart from above there is a judicial confession of appellant Md. Samsuddin @ Kalia recorded by the PW/14 Sukdhev Singh Anand, which is marked as Exhibit – 14.

We have very carefully gone through the said statement and we do not find any mistake on the part of the Judicial Magistrate in recording the same. There is nothing to doubt that such confession was voluntary and true. The PW/14, the Judicial Magistrate who recorded the confession was sufficiently cross-examined and there is no reflection that the confession recorded by him was not voluntary. The result of a trial does not depend on quantity but on the quality of evidence and as we have found that the evidence of PW/12 Nandu Roy is very much reliable and he is a witness of truth and his evidence is further corroborated by the judicial confession of the appellant Md. Samsuddin @ Kalia non-examination of those persons who were also sleeping at the place of occurrence cannot be said to be fatal for the prosecution case. We have also carefully examined the ocular account of assault in the light of the medical evidence and do not find there is any conflict. Non-disclosure of the appellant’s involvement in the forwarding report of other two co-accuseds is of no significance, as law does not need the same. In our opinion the prosecution has been able to prove its case beyond all reasonable doubt and the impugned order of conviction of the appellant deserve no interference.

We have found no wrong in the findings of the Trial Court that on the date of the alleged occurrence the appellant Md. Samsuddin @ Kalia was not a juvenile. Accordingly, the order of sentence passed against the appellant Md. Samsuddin @ Kalia is sustained.

There is no dispute that on the date of the alleged occurrence November 28, 1994 the appellant Sk. Feku and Sakil Ahmed were below the age of 18 years. Therefore according to the provisions of Section 2 (l) of the Juvenile Justice (Care and Protection of Children) Act, 2000, they were ‘Juvenile in conflict with law’ and in terms of explanation to Section 20 of the said Act, the appellants ought to be treated as ‘Juvenile in conflict with law’ although at the time of the commission of the offence neither the Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted nor the provisions of Section 2 (l) was brought into the statute book and this field was governed by the Juvenile Justice Act, 1986. Now for the reasons stated above, the appellants are to be treated as the ‘juvenile in conflict with law’ on the date of commission of the alleged offence, even if they are found to have committed an offence but in view of the mandate of Section 16 of the said Act, imprisonment for any term which may extend to imprisonment for life or committed to prison in default to payment of fine is absolutely illegal and without jurisdiction. We, therefore, set aside the sentence imposed against the appellants Sk. Feku and Sakil Ahmed.

This Court has been informed that the appellants Sk. Feku and Sakil Ahmed were detained in jail for a period which is more than the maximum period for which a ‘Juvenile in conflict with law’ may be confined to a Special Home, accordingly, it is directed, if the said two appellants are not wanted in connection with any other case, they shall be released from jail forthwith.

In the result while the appeal preferred by Md. Samsuddin @ Kalia is dismissed, the appeal preferred by the remaining two appellants Sk. Feku and Sakil Ahmed stands allowed to the extent as above.

The Office is directed to communicate this order to the Trial Court and send down the records at once.

Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible.