Edward Coster vs The State of West Bengal

Samapti Chatterjee, J.—The appellant preferred the instant appeal assailing the Judgment and Order of conviction passed in Sessions Trial No. 1(12)2000 by the Learned Sessions Judge, Bench-V, City Sessions Court, Calcutta on 30th June, 2003 convicting the appellant/petitioner u/s 302 of the Indian Penal Code. He is sentenced to suffer rigorous imprisonment for life and pay a fine of Rs. 5000/- and in default to suffer rigorous imprisonment for six months.

The case made out by the prosecution may be summed up thus.

On 16th April, 1999 at about 1:10 hours one Md. Yakub Chowdhury son of late Azizuddin Chowdhury of 1, Aga Mehedi Street, Calcutta-16 reported to the Police Station that his elder sister''s husband, namely, Md. Masoom son of late Md. Yakub resident of 1, Sereng Lane, Calcutta-14 had been removed to N.R.S. Hospital with severe head injuries and subsequently expired.

On receipt of such information, police from Taltolla Police Station rushed to the 2D, Taltolla Bazar Street being pointed out by the informant. At that place the police found pool of blood in front of the main door of the said premises. Thereafter placing guard at the place of occurrence Sub Inspector D. Kumbhakar went to N.R.S. Hospital where he found the dead body of Md. Masoom lying on the trolley at Emergency Room with severe injuries on his person. The Medical Officer of N.R.S. Hospital, Emergency on being questioned, reported to him that the Md. Masoom was declared brought dead. So he collected. The medical certificate of the victim vide P.C. Sl. No. 838 indicating that he was brought dead. Thereafter he had been to the residence of Md. Masoom and contracted Noor Jahan Begum wife of the deceased Masoom of 1, Sereng Lane, 3rd Floor, Calcutta-14 and recorded the statement of Noor Jahan Begum treating the same as F.I.R. and thereafter Taltolla P.S. Case No. 167 dated 16.04.1999 u/s 302/34 of the Indian Penal Code was registered and police started investigation on the direction of the O.C., Taltolla P.S. After completion of the investigation S.I. D. Kumbhakar submitted charge-sheet against the accused Edward Coster @ Edu u/s 302/34 of the Indian Penal Code and accordingly charge was framed against the appellant/petitioner u/s 302 of the Indian Penal Code and trial started and at the trial the accused found guilty and convicted as aforesaid.

In course of trial, the prosecution examined as many as 11 witnesses. P.W. 1 Jagannath Saha is a Plan maker attached to Detective Department, Calcutta Police. He prepared the sketch map of Taltolla Bazar Street and Sarang Lane.

(a) P.W. 2 Tabasum Naaz is the daughter of the deceased Md. Masoom.

(b) P.W. 3 Md. Yakub Chowdhury is the brother-in-law of the deceased Md. Masoom.

(c) P.W. 4 Noor Jahan Begum is the wife of the deceased Md. Masoom and the defacto complainant of the case.

(d) P.W. 5 Md. Abbas is a resident of 30/5, Alimuddin Street and declared as a hostile witness by the prosecution.

(e) P.W. 6 Dr. Prasanta Sinha is a Medical Officer attached to N.R.S. Hospital in Emergency Unit. He examined Md. Masoom on 15.04.1999 at 12:40 a.m. and declared that the patient was brought dead.

(f) P.W. 7 Arun Kumar Paul, S.I. of police held the inquest over the deadbody of deceased Md. Masoom.

(g) P.W. 8 Molla Safiul Alam is a Police Constable. He took photo graphs of the place of occurrence and the deadbody of Md. Masoom.

(h) P.W. 9 Dr. Suddhodan Batabyal is a Associate Professor in the Department of Forensic & State Medicine at Nilratan Sarkar Medical College and Hospital. He held the Post Mortem Examination over the deadbody of deceased Md. Masoom on 16.04.1999.

(i) P.W. 10 Biswa Nath Konar is S.D.J.M., Mathabhanga. On 23.09.1999 he held T.I. Parade of the suspect Edward Costar @ Edu at Alipore Central Jail.

(j) P.W. 11 Dhirendranath Kumbhakar is S.I. of Police. He is the Investigating Officer of the case who investigated the case and after investigation submitted charge sheet against the accused person.

The prosecution case is based on the evidence of P.W. 2 being the alleged sole eye witness to prove that the accused committed murder of the deceased.

Mr. Kallol Mondal, learned Counsel representing the appellant submitted that two General Diary (Hereinafter referred to as G.D. Entries) were registered on two different dates. First General Diary Entry being No. 1684 was registered on 15th April 1999 at 5:30 hours. The second General Diary Entry being No. 1682 was registered on 16th April 1999 at 1:10 hours which is unbelievable and cannot be accepted by any person of ordinary prudence. Learned Counsel further submitted that the second G.D. Entry being no. 1682 should be earlier one than the G.D. Entry No. 1684 but in the present case, it is shown that second G.D. Entry being No. 1682 was registered on 16th April, 1999 at 1:10 hours. Learned Counsel further contended that the FIR was full of contradictions and discrepancies. He further submitted that P.W. 7 in his deposition stated that he prepared the Inquest Report (marked Exbt. 4). In the said Inquest Report he stated that the deceased died on 15th April, 1999 at about 12:40 hours as per G.D. Entry No. 1684 dated 15th April 1999 but as per G.D. Entry No. 1682 dated 16th April 1999 at 1:10 hours (treated as F.I.R.).

On the question of 2 G.D. Entries being No. 1684 dated 15th April, 1999 at about 5:30 hours and G.D. Entry No. 1682 dated 16th April, 1999 at 1:10 hours Mr. Mondal relied on the Apex Court decision reported in T.T. Antony Vs. State of Kerala and Others, as follows:-

The scheme of Cr.P.C. is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 Cr.P.C. on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he as to form an opinion u/s 169 or 170 Cr.P.C., as the case may be, and forward his report to the Magistrate concerned u/s 173(2) Cr.P.C. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 Cr.P.C.

He further submitted that evidence of P.W. 2 is not believable. She stated in her deposition that the accused and other 3/4 persons were assaulting her father (deceased). When she was approaching towards Ukil Sabha''s Ground then she met her maternal uncle, P.W. 3 Yakub Chowdhury and she narrated the entire incident and told her maternal uncle P.W. 3 to immediately go to the place of occurrence where her father (deceased) was being assaulted by the appellant and other 3/4 persons. From her deposition it also could not be proved that she was an eye witness, submitted by Mr. Mondal.

Mr. Mondal submitted that evidence of the sole eye witness is an interested witness (daughter of deceased) and not an independent witness who cannot be relied upon by the prosecution to convict the appellant. In support of his submission Mr. Mondal relied on an Apex Court decision reported in Judgment Today Suresh Chaudhary etc. Vs. State of Bihar, where the Hon''ble Apex Court was of the opinion that the evidence of a close relative as well as the interested witness and also the evidence of the Investigating Officer which is full of contradictions, cannot be relied upon to base a conviction.

He further contended that prosecution claimed P.W. 5 as alleged eye witnesses but the said eye witness was subsequently declared hostile.

Mr. Mondal further contended that P.W. 2 in her cross-examination deposed that on 15th April, 1999 she failed to come back to her house and she stayed at her maternal uncle''s house and thereafter on 16th April, 1999 she returned to her house. Then she narrated the entire incident to her mother P.W. 4. P.W. 2 further in her cross examination stated that accused was known to her. She knew the address of the accused. Mr. Mondal urged that this evidence of P.W. 2 is concocted, contradictory, unbelievable and cannot be sustained in the eye of law and therefore should not be given any weightage by the Court.

Mr. Mondal further submitted that the P.W. 3 in his deposition stated that the deceased was his brother-in-law. The P.W. 3 stated in his deposition that on 15th April, 1999 at about 11:45 PM/12 hours when he was standing in front of his house one Sadar reported him that his brother-in-law Masoom was being assaulted by some persons near Karim Hotel. Then he rushed towards Karim Hotel and on the way he met P.W. 2 and the P.W. 2 told him that his father (deceased) was being assaulted by some persons. Mr. Mondal contended that there is a clear contradiction between statement of P.W. 2 and P.W. 3.

Mr. Mondal further contended that P.W. 3 in his deposition stated that he (P.W. 3) removed deceased Masoom to hospital by a taxi and his sister P.W. 4 also accompanied him. Masoom was taken to NRS Hospital and when Masoom was brought to the hospital the Doctor after examination declared him as dead. Then the P.W. 3 took the P.W. 4 to Taltalla Police Station to lodge diary. There the P.W. 4 narrated the incident to the police and police wrote the FIR and thereafter P.W. 4 was asked to sign over the same. P.W. 3 stated in his deposition that he would be able to identify those culprits but in the FIR accused''s name was not mentioned though P.W. 3 stated that he knows the accused. P.W. 3 further stated in his deposition that he could identify one of the miscreants in the jail. But in the cross examination the P.W. 3 stated on 28th September 2001 that he was informed by one Sadar but that Sadar was not examined in the Court. Not only that in the cross examination of P.W. 3 stated that prior to the incident he saw the accused in their locality but in the TI Parade accused was identified by the Jailer, not by the P.W. 3.

Mr. Mondal further contended that the P.W. 4, wife of the deceased in her deposition stated that at 11:30 PM they could hear that somebody was shouting that "Masoom Bhaiko Maar Diya". Immediately she came down to the ground floor but did not find P.W. 2,(her daughter) there. Then she went a bit forward and found the deceased lying in front of Karim Hotel. Mr. Mondal stated that the evidences of P.W. 2 and P.W. 4 did not corroborate. Mr. Mondal further submitted that there is no credibility in the evidence of P.W. 2 and P.W. 4.

Mr. Mondal submitted that in the FIR there was no mentioning of P.W. 2. First time in the Court P.W. 4 stated that she was searching for her daughter (P.W. 2) but she did not find her which is unbelievable.

Mr. Mondal further contended that accused is a known person to the witnesses as the P.W. 4 stated in her cross examination that she knew Edward who lives in their Mohalla (area). But name of the Edward was not mentioned in the FIR. Not only that P.W. 4 in her cross examination stated that she (P.W. 4) failed to identify the accused on dock which proved that witness was tutored to depose being an interested person.

Mr. Mondal submitted that evidence of P.W. 2, P.W. 3 and P.W. 4 are full of contradictions and totally unbelievable.

Mr. Mondal further contended that P.W. 6 Doctor stated in his deposition that P.W. 3 (deceased''s relative) brought the deceased to the hospital. The date of receiving of the injury was on 15th April 1999 at about 11:50 P.M.. The place of occurrence was near the deceased''s home at Taltalla Bazar. On 15th April, 1999 at 12:40 A.M. Doctor (P.W. 6) examined the deceased. On examination P.W. 6 found that the deceased was brought dead. He also found 3 numbers of injuries and cut marks on the forehead of deceased measuring 1 1/2 " X 1/4" X bone deep, one cut mark at the back of head and multiple injuries ten in number on anterior abdominal wall. Thereafter the body of the deceased was sent to the morgue for post mortem examination. Mr. Mondal submitted that P.W. 6 never deposed anything that the deceased was assaulted by 3/4 persons.

Mr. Mondal submitted that P.W. 9 the Doctor who prepared the post mortem report in his deposition stated that-1. One abrasion 1" x 1/2" over the back of the left elbow joint; 2. Diffuse bruise 4" x 3" placed over the back of the upper part of left arm with fracture and dislocation of left elbow joint; 3. One incised wound measuring 3" x 1/2 " x bone placed obliquely and placed right frontal region 1/2" from midline to right; 4. Another incised would 3" x 1" x bone brain placed obliquely over left side of occipital protruborane with cut fracture of occipital bone of 1/2" in size. Both the incised wound cut the hairs of the scalp, layers of the scalp as blood vessels correspondingly; 5. Multiple punctured lacerated wound (total no. 10) placed in front of upper part of the abdomen measuring 1/6" x 1/6" x to 1/8 " x 1/8" with evidence of burning and (illegible) of the margins of the wounds with blocking of the surrounding area; 6. Scalp haematoma 6" x 4" over right frontal region,; 7. Scalp haematoma 4" x 4" over occipital region; and 8) Subdural haematoma of both cerebral hemisphoros. In his opinion the death was due to the effects of injuries and ante mortem and homicidal in nature. P.W. 9 in his cross examination stated that the date of death and date of examination are not same. He further stated that he found that inquest was prepared on 16th April, 1999 all the injuries excepting the wound no. 5 might be occasioned by the said weapon.

Mr. Mondal submitted that no weapon was ever recovered. Therefore it is not specific/clear that wherefrom the P.W. 9 got the offending weapon. Mr. Mondal thus submitted that deposition of P.W. 9 is full of contradictions and it does not tally with the inquest report.

Mr. Mondal further contended that the P.W. 11, the I.O. in his statement stated that he contacted the P.W. 4 the wife of the deceased at her residence and she narrated the incident to the I.O. and the I.O. recorded the statement of said Noor Jahan Begum, P.W. 4, in presence of Yakub Chowdhury, P.W. 3. But P.W. 4 in her deposition stated that FIR was lodged at the police station which is contradictory to the evidence of I.O., P.W. 11.

Mr. Mondal further contended that P.W. 11, I.O. in his deposition stated that he prepared seizure list and in presence of the witnesses namely Ektar Ahmed, Sk. Sahajahan and Dilwar Hossain. Unfortunately these three witnesses were not examined by the prosecution. The P.W. 11 further deposed that he prepared two seizure lists marked as Exbt. 7 and 8 respectively. The P.W. 11 further deposed that he recorded the case being Taltolla P.S. Case No. 167 dated 16th April, 1999 u/s 302/34 of the Indian Penal Code on the basis of the recorded statement of Noor Jahan Begum namely P.W. 4 which was treated as formal FIR drawn by the P.W. 11 being Exbt. 9/1. P.W. 11 also deposed that he also examined some of the witnesses namely Md. Abbas, Md. Rahaman Qureshi and Sadarjan Box and recorded their statements but those witnesses were not examined. P.W. 11 further deposed in his evidence that on 29th May, 1999 with the help of local police he arrested the appellant Edward Coster @ Edu from flat no. 504, 5th Floor Janjeet Complex, P.S. Mira Road, District-Thane, Maharashtra. P.W. 11 in his deposition further stated that he did not mention in the G.D. showing the actual time when Md. Yakub Chowdhury came to the police station and he also deposed that he did not recorded the statement of Md. Yakub Chowdhury as said Md. Yakub Chowdhury at that time did not tell about the place of occurrence before him. P.W. 11 further deposed that the P.W. 4 Noor Jahan Begum did not tell him that she personally saw the incident. He further stated that he recorded the statement of Noor Jahan Begum, P.W. 4 at 2:20 hours at her residence in presence of her brother, P.W. 3. P.W. 11 further deposed that he cited 4 eye witnesses in the charge-sheet and out of 4 eye witnesses 2 turned up in the Court for deposition and no summons were served upon to other eye witnesses namely Md. Rahan Qureshi and Sadab Zama Bakshi. P.W. 11 further deposed that in the present case he arrested 2 accused persons namely Edward Coster @ Edu and Md. Ekramuddin @ Jamil Munna. T.I. Parade in respect of Md. Ekramuddin @ Jamil Munna was held on 18th May, 1999 but no charge-was framed against Md. Ekramuddin. He was arrested from Kolkata and subsequently he was released.

Mr. Mondal thereafter submitted that it is crystal clear from the evidence of P.W. 11 I.O. that out of 4 eye witnesses only 2 were produced and other two were not produced before the Court. Not only that 3 signatories of the seizure list namely Ektar Ahmed, Sk. Sahajahan and Dilwar Hossain were not examined. Further, other than Edward Coster one Md. Ekramuddin @ Jamil Munna was also arrested by the I.O., P.W. 11. The I.O. also made an application for holding T.I. Parade in respect of other accused namely Md. Edramuddin @ Jamil Munna. Said Ekramuddin was arrested from Kolkata but no charge was framed and subsequently he was released.

Mr. Mondal further submitted that the accused Edward was falsely implicated in the case as he was totally innocent and had no connection with the present case and none of the witnesses could implicate the accused to the offence. There is no evidence implicating the accused to the present offence at all.

He further commented that the I.O. investigated the case sitting in the police station. Therefore, charges levelled against the appellant is totally false, concocted and without any basis. So, the appellant should be acquitted after setting aside the impugned judgment and order. He further submitted that no offence was at all committed by the appellant.

Mr. Pawan Kumar Gupta, learned Advocate appearing for the State very fairly submitted that the P.W. 5 one of the eye witnesses declared hostile. Out of 4 eye witnesses only 2 witnesses were examined but other 2 witnesses were not examined by the prosecution.

Mr. Pawan Kumar Gupta, learned Advocate further submitted that after going through the evidence of P.W. 2 it cannot be considered that P.W. 2 was an eye witness.

Mr. Pawan Kumar Gupta learned Advocate for the State tried his level best to convince the Court by submitting that except dates of G.D. Entries and times, if the Court chronologically considers the dates that on 15th April, 1999 incident occurred, thereafter accused was arrested on 29th May, 1999 and T.I. Parade was held on 29th June, 1999. All these dates and times are correct and corroborated with the evidence of witnesses.

He further submitted that if the court accepts those dates like date of occurrence, date of arrest and date of T.I. Parade then prosecution can prove its case.

Mr. Mondal in his reply submitted that probability cannot prove the case of prosecution.

He further stated that the F.I.R. was full of contradictions and discrepancies.

He further stated that no material witnesses were examined. P.W. 2''s deposition cannot be believed, therefore, should not be considered/looked into by the Court; the doctor P.W. 9 all of a sudden stated in his cross-examination that all the injuries excepting the injury no. 5 may have occurred by the said weapon, but wherefrom the doctor got the offending weapon when no weapon was ever recovered by the police either from the place of occurrence or from elsewhere.

Mr. Mondal further submitted that since 1999 till date i.e. more than 13 years the appellant is in jail.

There cannot be any dispute that the deceased Md. Masoom died a homicidal death. Now the question is whether the prosecution has been able to connect the present accused with the alleged crime.

Let us now examine/asses the evidence on record to ascertain whether the appellant is at all connected with the alleged crime.

After carefully going through the evidence both oral as well as documentary we find that the prosecution''s case is wholly based on evidence of one so called eye witness. We find that the evidence of P.W. 2 (daughter of the deceased) and the evidence of P.W. 4 (wife of the deceased) are totally contradictory and full of discrepancies. P.W. 2 stated in her deposition that she allegedly knew the appellant whereas she stated in her cross examination that one person whom she did not know was shouting taking the name of his father then she was reported by that person that some quarrel took place between the deceased (her father) on one hand and a few persons on the other hand near Karim Hotel. After gathering the alleged incident, instead of returning to her house she started to walk towards Ukil Sabhas''s Ground, when she found her maternal uncle namely Yakub Chawdhury, P.W. 3 coming then she told him to immediately go to the place of occurrence where the deceased (her father) was being assaulted by the accused and other 3/4 persons. Considering the evidence of P.W. 2 it is not proved by the prosecution that P.W. 2 is an eye witness of the incident. She further deposed in her cross examination that the accused was known to her and she knew the address of the accused. But from the FIR it is evident that name of the accused was not mentioned in the FIR. Therefore, it is crystal clear that the evidence of the P.W. 2 is full of contradictions and discrepancies and is not believable.

We also find that P.W. 5 the alleged eye witness was subsequently declared hostile by the prosecution.

We find that P.W. 3 stated in his deposition that on 15th April, 1999 at about 11:45 P.M./12 hours when he was standing in front of his house one person namely Sadar reported him that the deceased Masoom was being assaulted by some person near Karim Hotel. Said Sadar never uttered the name of the appellant. The P.W. 3 rushed towards the Karim Hotel and on his way he met P.W. 2 who narrated to the P.W. 3 that the deceased (her father) was being assaulted by some persons including accused.

We find that evidence of P.W. 2 and P.W. 3 were not corroborate each other as the P.W. 2 mentioned the name of accused though the person namely Sadar did not mention the name of the accused to the P.W. 3.

We further find that said person Sadar was not examined by the police or Court. Therefore, we are not inclined to accept the deposition of the P.W. 3.

We find from the deposition of P.W. 4 that she stated that she knew the accused who lives in their area but name of the accused was not mentioned in the F.I.R. Furthermore, P.W. 4 in her cross examination stated that she failed to identify the accused on dock. We further find that there are discrepancies and deviations between the statement in FIR and the evidence of the P.W. 4 being an interested and related person. Therefore, in our view the evidence of P.W. 4 does not deserve any consideration.

We find that P.W. 9, the Doctor, in his cross examination stated that the date of death and date of examination are not same. He further deposed that he found that inquest was prepared on 16th April, 1999. All the injuries excepting the wound no. 5 might have occurred by the said weapon but we find that no weapon was ever recovered by the police. Further we find the deposition of P.W. 9 does not tally with the Inquest Report.

We find from the evidence of I.O. that the FIR was written at the house of Noor Jahan Begum, P.W. 4 but the P.W. 4 in her deposition stated that she lodged the FIR at the police station. Furthermore, we find from the evidence of I.O. that he prepared the seizure list being Exbt. 7 & 8 in presence of witnesses namely Ektar Ahmed, Sk. Sahajahan and Dilwar Hossain. Those witnesses were not examined either by the police or by the Court.

We further find that P.W. 11 I.O. stated in his deposition that Noor Jahan Begum P.W. 4 did not tell him specially that she personally saw the incident. We find that I.O. also in his deposition stated that he cited 4 eye witnesses in the charge-sheet and out of them 2 turned up in the Court for deposition but summons were not served upon 2 eye witnesses namely Md. Rahman Qureshi and Sadab Zama Bakshi.

We further find that I.O. in his deposition stated that he arrested 2 accused persons in the said case one is Edward Coster @ Edu/appellant and the other is Md. Ekramuddin @ Jamil Munna. He further stated that he made an application holding T.I. Parade in respect of the other accused Md. Ekramuddin @ Jamil Munna. The T.I. Parade in respect of Md. Ekramuddin @ Jamil Munna was held on 18th May, 1999 but he was not charge-sheeted as a result of which he was released.

Therefore, in the facts and circumstances including the evidence stated above, we have no hesitation to hold that there are several lacuna, inconsistencies, contradictions, absurdities, loosends, and untold stories in the prosecution case. So, the prosecution case in our view, cannot be said to have been proved beyond all doubts. The learned Trial Court had therefore, wrongly convicted the appellant of the alleged offence. The Judgment and Order of conviction and sentence dated 30th June, 2003, in Sessions Trial No. 1 of December, 2000 (Sessions Case No. 8 of 2000) convicting the appellant of the offence punishable u/s 302 of the Indian Penal Code is, therefore, set aside. The appellant is found not guilty of the charge u/s 302 of the Indian Penal Code framed against him.

The appellant is acquitted. He be released from the custody if his detention is not required in any other case.

The appeal is accordingly allowed.

Urgent certified photostat copy of this Judgment, if applied for, be supplied to the learned Advocate for the parties upon compliance of all formalities.