Md. Sahar Ali Sk. vs The State of West Bengal

Md. Mumtaz Khan, J.—1. This appeal has been preferred by the appellant assailing the judgment, order of conviction and sentence dated February 15, 2005 and February 16, 2005 receptively passed by the Ld. Additional Sessions Judge, 5th Court, Alipore in S.T. No. 1(3)2003 arising out of S.C. No. 28(7) 2002.

By virtue of the impugned judgment appellant was found guilty of the offence punishable under Section 326 of the Indian Penal Code (hereinafter referred to as I.P.C.) and accordingly he was convicted and sentenced to suffer rigorous imprisonment for 8 years and also to pay a fine of Rs. 2000/-in default to suffer further rigorous imprisonment for 2 months with a direction to set off the period of detention during investigation and trial under Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.).

The backdrop of the case of prosecution is discussed in a nutshell hereunder:--

"A written complaint dated March 15, 2002 was submitted by one Ananta Kumar Munda son of late Sukchand Munda of Bongaonpara, P.O. Kalitala, P.S. Canning (PW 1) before the officer-in-charge Canning Police Station, District-South 24-Parganas. According to the above complaint, appellant, a resident of the same village called victim Manik Munda (P.W.4) from his home with an intent to murder him due to some unknown reason and thereafter chopped off his scrotum with a sharp cutting weapon. Due to such injury PW 4 was taken to Canning Hospital in serious condition."

On the basis of the above written complaint a Canning P.S. Case No. 35, dated March 15, 2002 was started against the appellant under Section 326/307 IPC and the investigation ensued which ended in charge sheet No. 66 dated May 29, 2002 against the appellant under Section 326/307 IPC.

Charge was framed against the accused-appellant on March 15, 2003 under Section 326/307 IPC and after the appellant denied his involvement in the crime, trial commenced. Prosecution examined 9 witnesses and also produced and proved certain documents including injury report, bed head ticket of Canning Hospital etc. and thereafter on completion of trial and after recording the statement of appellant under Section 313 Cr.P.C. learned court below passed the impugned judgment and order.

It is submitted by the learned advocate appearing on behalf of the appellant that the impugned judgement, order of conviction and sentence cannot be sustained in law for the following reasons:--

"i) There were material discrepancies and contradictions in the evidence of prosecution witnesses, so also in between the evidence of P.W.3 and P.W4, the only eye witnesses, which are vital going to the root of the case making the prosecution case doubtful.

ii) The story of incident as narrated by the P.W.1 before the court had not been stated in the F.I.R. which raises doubt about the credibility of P.W.1 and the prosecution case.

iii) No such weapon of offence in question or the torch light was seized and produced during trial which gave rise to serious doubt relating to the involvement of the appellant in the commission of the alleged offence.

iv) There was doubt about the nature of the injury sustained, as the scrotum was reportedly severed in the night at 00.30 hrs. but he was admitted in the hospital at 13.50 hrs. i.e. after 13 hrs. of the reported incident. Even the vital relevant information was not available either from the injury report (Ext. 2) or the bed-head ticket (Ext. 3)."

According to learned advocate appearing on behalf of the appellant, learned Court below did not take into consideration the aforesaid aspects of the matter for passing the impugned judgment, order of conviction and sentence.

It is submitted by the learned advocate representing the state that the entire case is based on the evidence of eye witnesses namely P.W.3 and P.W.4 and also from P.W.1 who heard from the injured as also the eye witness and the doctor, P.W.6 who corroborated the injuries of the victim.

According to the learned advocate representing the state, case against the appellant was proved beyond all reasonable doubt and there was no evidence on record to show any enmity or grudge for false implication.

We have considered the submissions advanced by the learned Counsels appearing for the respective parties and have given our thoughtful consideration to the evidence of the prosecution witnesses, the materials on record including the FIR, injury report, bed-head ticket, charge sheet, charges framed amongst other materials for examining the propriety of the impugned judgement.

The learned Court below took into consideration the evidences of eye witnesses P.W.3 and P.W.4 as also evidence of P.W.6, the doctor, who treated the victim at the Canning Hospital and corroborated the injury sustained by the victim, to arrive at a conclusion that it was the appellant who caused grievous injury to the victim by cutting off his testicles by a knife and thereby committed an offence punishable under section 326 I.P.C.

On perusal of the evidence of the prosecution witnesses on record together with the evidence of the doctor (P.W.6), the injury report (Ext. 2) and the bed-head ticket of the Canning Rural Hospital (Ext. 3) it appears that on March 15, 2002 at 1.50 P.M victim Manik Munda (P.W.4) was brought in the Emergency Department of Canning Rural Hospital having superficial cut injury over dorsal aspect of penis and ventral aspect of scrotum and removal of both of his testis for which he was admitted there. The circumstances leading to such injury of the victim has been described in the letter of complaint and vividly narrated by the victim (P.W.4) himself and corroborated by the eye witness namely the minor girl (P.W.3) as also by P.W.1, P.W.2. P.W.5 and P.W.7. It is evident from the evidence of the prosecution witnesses on record that on the relevant night minor girl (P.W.3) and her grandfather namely the victim (P.W.4) were sleeping in the same room, the door of which was open, when the appellant entered there and thereafter committed the offence. From the evidences of both P.W.3, the minor girl and P.W.4, the injured, we find that they, in course of recording of their evidences before court, identified the appellant to be the miscreant who committed the offence. The elaborate cross-examination of the above injured and the eye witness on behalf of the appellant/accused person failed to discredit their testimony in any manner whatsoever. P.W.1, P.W.2. P.W.5 and P.W.7 also identified the accused/appellant in course of recording their evidence before court to be the miscreant who committed the offence. Though P.W.1, P.W.2. P.W.5 and P.W.7 are not the witnesses to the occurrence but their prime source of information about the incident was P.W.3 which she herself has corroborated. They were also cross-examined at length but nothing came out contrary to their statements-in-chief. From the trend of cross-examination it appears that save and except the plea of false implication nothing was brought on record to support the same. In the absence of any cogent evidence on record showing any enmity whatsoever there also appears no reason why the victim shield the actual culprit and implicate the appellant.

With regard to the nature of the injuries sustained by the victim/injured, it is the specific allegation of the prosecution, as made out in the FIR, that on the relevant night appellant chopped off the scrotum of the victim by a sharp cutting weapon. P.W.4, the victim, has also specifically stated on oath that on the relevant night around 12 O'' clock while he was sleeping, he woke up on hearing shouting of his minor grand daughter Anima Munda (P.W.3) who was also sleeping in his room and saw the appellant in the said room. According to him appellant had embraced Anima Munda for which she raised alarm and he woke up. Appellant then seeing him dragged him outside the room and cut his testicles with a knife and fled away. P.W.3 has also clearly stated that on the relevant night around 12 O'' clock appellant after entering into her house touched her breast and embraced her and at that time her grandfather was going out of room and then seeing him appellant hit him with three batteries torch and thereafter dragged him outside the room and cut off his testicles with a knife and fled away. The above statements of P.W.3 and P.W.4 find corroboration from P.W.1, P.W.2, P.W.5 and P.W.7. P.W.6, the doctor, who examined P.W.4 at Canning Rural Hospital on 15.3.2002 and issued the medical report (Ext. 2) also found superficial cut injury over dorsal aspect of penis and ventral aspect of scrotum and removal of both of his testis by a sharp instrument for which he was admitted there. Bed-head ticket of the said hospital (Ext. 3) also supports the same. According to the doctor (P.W.6) as also the injury report (Ext. 2) nature of the injury was grievous caused by sharp cutting instrument and history of such injury was due to assault by the appellant. Interestingly he was not challenged by the accused/appellant on this score. He also did not agree to the defence suggestion that if both the testicles were removed by sharp cutting weapon causing profused bleeding as a result patient may die within one hour. In view of the above there leaves no room for doubt about the nature of the injury sustained by the victim and his treatment for the said injury at the Canning Rural Hospital.

With regard to the discrepancies, as pointed by the learned advocate for the appellant, it is the settled proposition that the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases and trivial discrepancies ought not to obliterate an otherwise acceptable evidence and the court will have to bear in mind that different witnesses react differently under different situations. Reference may be made to the decision of Leela Ram v. State of Haryana, reported in , (1999) 9 SCC 525. It is also well settled that there bound to be some discrepancies between the depositions of different witnesses when they speak in details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Reliance is placed on the decision of State of H.P. v. Lekh Raj, reported in , (2000) 1 SCC 247. In the matter of Shyamal Ghosh v. State of West Bengal, reported in , (2012) 7 SCC 646, it has been held by the Hon''ble Apex Court that court should examine the statement of a witness in its entirety and read the said statements along with the statements of other witnesses in order to arrive at a rational conclusion instead of reading statement of a witness in part or in isolation. The above principles of law have been elaborately discussed by us in the Judgement delivered on January 29, 2016 in the matter of Tutul Sk @ Noor Alam & Anr. v. State of West Bengal.(In re: CRA 824 OF 2006).

As discussed herein above, the learned trial court took into consideration the evidence of the victim (P.W.4) and eyewitness namely PW. 3, a minor girl, who was present in the same room and corroboration of their evidences with the injury report and the bed head ticket and the evidence adduced by PW.6 who had examined the victim and prepared the report and also the evidence of P.W.1, P.W.2. P.W.5 and P.W.7, witnesses immediate after the occurrence. It is evident from the evidence of above witnesses that they had fully corroborated the prosecution case and their statements-in-chief remained unshaken during cross-examination and nothing brought on record to discredit them and as such there was no reason to discard their evidences.

After considering the lower court''s record, we do not find any substance in the submissions made on behalf of the appellant that the case of the prosecution is full of discrepancies and contradictions which goes to the root of the case. Therefore, the impugned judgment need not require our interference on the above ground.

Regarding non disclosure in the FIR all the facts whatever stated before court, we find that the complainant (P.W.1) was not the witness to the occurrence but he gathered his knowledge about the incident from the victim (P.W.4) and the minor girl (P.W.3). It is true that P.W.1 did not mention in detail in the FIR whatever stated before court but that cannot be a ground for disbelieving the above witness and the prosecution case in view of the proposition of law that law would not expect mentioning of minutest details in FIR. Though, in the case in hand, we find that FIR is very clear about the date, time and place of occurrence of the incident and involvement of the appellant in the commission of the said offence resulting in hospitalization of the victim in the Canning Hospital in serious condition. It is the settled proposition of law that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law and the same itself is not the proof of a crime but is a piece of evidence which can be used for corroborating prosecution case. The FIR need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies. Reference may be made to the decision of Jitender Kumar v. State of Haryana, reported in , (2012) 6 SCC 204. Therefore, our interference with the impugned judgment is not required on the above ground.

Admittedly, no such weapon of offence or the torch light were seized by the I.O. In this regard it is the evidence of P.W.9, the I.O., that he conducted raid at the house of the appellant but failed to arrest him and accordingly after completion of investigation he submitted charge-sheet against the appellant. It is also evident from the record that appellant surrendered before the court below on May 22, 2002. So there was no scope to recover the weapon of offence. Moreover, there was also no cross-examination by the defence in the matter of non production of the weapon of offence or the torch light in question. Be that as it may, failure to recover weapon of assault or the torch light in question is not fatal for the prosecution case when the prosecution case is otherwise proved based on the testimony of the victim himself and the eye witness corroborated by the medical evidence and the other witnesses immediate after the occurrence. Reference may be made to the decision of Ram Singh v. State of Rajasthan, reported in , (2012) 12 SCC 339. Therefore, our interference with the impugned judgment is not required on the above ground.

Therefore, taking into account the entire circumstances learned court below arrived at the conclusion that the facts and circumstances of the case shows the commission of the offence u/s. 326 I.P.C. and accordingly passed the order of conviction for the said offence. Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under that section.

In view of the above, we have no difficulty in reaching the conclusion that the conviction of the appellant Md. Sahar Ali Sk under section 326 IPC and the sentence imposed thereunder is fully justified. We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant.

The bail granted to the appellant on February 23, 2006 in CRAN No. 31 of 2006 is, therefore, cancelled and the appellant is directed to surrender before the Trial Court within a period of fortnight from the date of this judgement to serve the sentence and in case of failure on the part of the appellant to comply the said direction, learned Trial Court shall take appropriate steps in the matter.

Copy of this judgement along with the lower court records be sent down to the trial court forthwith by a special messenger for information and taking necessary action.

Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.

Debasish Kar Gupta, J.—I agree.