Rakesh Tiwari, J.:— The instant appeal has been preferred by the appellants challenging the judgment and order of conviction and sentence dated 23rd June, 2010 and 24 June, 2010, respectively, passed by learned Additional District and Sessions Judge, 5 Court, Barasat, North 24-Parganas, in Sessions Tr5ial No. 8(5)/2003, arising out of Sessions Case No. 12(11)/2002, convicting the appellants under sections 302/34 of the Indian Penal Code, section 25/27 of the Arms Act and section 9(B) of the Indian Explosive Act.
2. Md. Jalaluddin Ahmed Khan, son of Hazi Ismail Ahmed Khan, resident of Pukuria under the jurisdiction of Haroa Police Station, North 24-Parganas set the police in motion by lodging an FIR with the Officer-in-charge, Haroa Police Station on 17 July, 2002 at about 11.35 hours, inter alia, stating that on the same day, at about 10.30 a.m, he got an information through his nephew Giasuddin Ahmed Khan that his brother Rafiquddin Ahmed Khan had been murdered on Pukuria Road; that on receipt of the information he rushed to the place of occurrence and saw the body of his deceased brother lying on the road in open space in the middle of Pukuria and Jampur and blood was oozing out from the wounds. He also stated that he came to know on the same day, at about 10.00 a.m that while his brother was returning home from the field by a cycle, (1) Sirabul Mallick, son of Late Btmai Mallick, (2) Pintu Mallick, son of Sahidul Mallick, (3) Dany Mondal, son of Late Mucha Mondal and (4) Nazrul Mondal, son of Ain Mondal, all residents of Pukuria, attacked Rafiquddin, since deceased. At the first instance, a bomb was hurled at the back of Rafiquddin, as a result of which he fell down from the cycle and thereafter, the miscreants fired bullets at him and also used a ‘dao’ and other sharp weapons to murder the victim.
3. A perusal of the written complaint also shows that Rafiquiddin is said to have enmity/long disputes over business matters with Murshid Ali Mandal, son of Late Echahoque Mondal and Sahidul Malick, son of Halim Mallick, since 8/9 years before this incident and that the accused persons attacked Rafiquiddin with a view to kill him, but he had survived for about 8/10 days; that before the incident, a fresh dispute had developed in between Rafiquiddin and Murshid in connection with construction of a saloon when Dolu and other accused persons under leadership of Murshid, had threatened Rafiquiddin with dire consequences.
4. Inquest over the body of Rafiquiddin was held by Sri Swapan Kumar Das, S.I Haroa Police Station, U.D Case No. 18 dated 17 July, 2002 and Haroa P.S Case No. 52 dated 17 July, 2002 under sections, 302/34, 120B of the Indian Penal Code, section 25/27 of the Arms Act and section 9B of the Indian Explosive Act was started.
5. The inquest report was submitted along with sketch map. In the inquest report Jalaluddin Ahmed Khan, Giyasuddin Ahamad Khan, Mohiuddin Ahemad and Bisur Ali were mentioned as witnesses to the inquest. Out of the aforesaid four witnesses to the inquest, Jalaluddin Ahmed Khan, the informant of the FIR only was examined and none other. In the inquest report dated 17 July, 2002, the investigating officer reported the position of the body thus:
“The dead body was found lying on a brick built kancha road of Pukuria Jampur village with head towards the west and legs towards the east and the body was found to be lying on dorsal position. The height of the deceased was found to be apparent 5″2′ with medium complexion. Light greenish coloured check lungi, cream coloured punjabi along with while coloured sando ganzee put on by the deceased inside the punjabi were the wearing apparels of the deceased. The dead body was found with half opened eyes and black hair. The dead body was found to have mustachio and beard without being shaved and the dead body was found to have mouth in slightly open condition. The two hands of the deceased were found to be straight lying along the two sides of the body of the deceased remaining in dorsal position.
6. The dead body was examined by turning round and round before the witnesses signed aside and a deep injury seemed to be caused by the attack with a chopper on the left side eof the forehead was found on the dead body. Large sized injuries caused by the blasting of bomb at the bottom of the backbone and at the upper portion of the hip were also noticed and an injury caused by attack of bullet on the right side of the ribs was also found as a result of this there were signs of blood on the dead body of the deceased.”
7. The body of the deceased was sent for post-mortem. Autopsy was performed by Dr. Chandra Sekhar Roy, who reported the following injuries on the cadaver:
i) one bomb injury on the right side of Thigh,
ii) bomb powder on the body of the deceased,
iii) one gun shot injury over right side of chest exit to back side, fractured 11 and 12 thoracic vertebra fractured ribs 5 to 8; the death was due to haemorrhagic shock followed by gun shot and bomb blast,
iv) one incised wound on hip (not taken in evidence but appearing in post-mortem report).
8. The accused persons were charged for offences as follows:
“First - That you, on or about the 17 day of July, 2002 at 10 A.M in furtherance of your common intention of you all did commit murder by intentionally causing the death of Rafique Uddin Ahmad Khan of Pukhuria on an open field in between Pukhuria and Jampur under P.S Haroa and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within my cognizance.
Secondly - That you, on or about the 17 day of July, 2002 at 10 A.M on the open field in bwetween Pukhuria and Jampur had in your possession (sic) fire arms without licence. And thereby committed an offence punishable under Section 25 of the Arms Act and within my cognizance.
Thirdly - That you, on or abot the 17 day of July, 2002 at 10 A.M used the fire arm you had in your possession against Rafique Uddin Ahmed on an open field in between Pukhuria and Jampur. And thereby committed an offence punishable under section 27 of the Arms Act and within my cognizance.
Fourthly - That you, on or about the 17 of July, 2002 at 10 A.M had in your possession (torn) are explosives and used the (torn) explosive and thereby committed an offence punishable under section 9(B) of the Explosive Act and within my cognizance.”
9. The prosecution produced as many as 14 witnesses in support of its case. 14 documents were also exhibited and Alamats had also been brought into evidence as Material Exhibits - 1, 2 and 3. Apart from these, one of the accused persons, Nazrul Mondal, is said to have made a confessional statement under section 164 of Cr.P.C before learned Magistrate, admitting his involvement in the crime with other three accused persons.
10. Learned Additional Sessions Judge, 5 Court, Barasat, North 24-Parganas in Sessions Trial No. 8(5) of 2003, arising out of Sessions Case No. 12(11) of 2002, vide his judgment dated 23 June, 2010, after considering the facts of the case and materials, ordered as follows:
“That the accused (1) Sirazul Mallick, (2) Pintu Mallick, (3) Dalu Mondal and (4) Nazrul Mondal are found guilty of offences punishable u/s 302 IPC read with sec. 34 IPC and they are convicted for the said offence.
They are also found guilty of the offence punishable u/s 9(B) of the Indian Explosive Act and they are also convicted for the same.
The accd. Persons are acquitted from the charges u/s 25/27 of the Arms Act.
Considering the gravity and nature of the offence involved in this case I do not find it as a fit case to deal with any of the convicts under the provisions of sec. 360 of the Cr.P.C or under the provisions of Probation of Offenders Act.
These four convicts are made aware of the punishment prescribed by law for the respective offence for which they are convicted.
These four convicted persons are directed to be produced before this court on 24.6.10 sharp by 10/30 a.m on the point of sentence.”
11. On the question of sentence, the Court on consideration of the statement of the convicted persons, taking note of the facts and circumstances of the case, on 24 June, 2010, further ordered thus:
“That (1) Sirazul Mallick, (2) Pintu Mallick, (3) Dalu Mondal and (4) Nazrul Mondal ae held guilty u/s 302/34 IPC and are convicted u/s 235 Cr.P.C and sentenced to suffer imprisonment for life each and to pay fine of Rs. 2000/- each, in default, to suffer R.I for six months.
They are also sentenced to suffer S.I for one year and also to pay fine of Rs. 500/- each in default, to suffer R.I for one month for the offence punishable u/s 9(B) of Indian Explosive Act.
The substantive sentences imposed upon each of these convicted persons do run concurrently.
The period of detention already undergone by each of these convicted persons in the earlier stage of this instant case be set-off u/s 428 Cr.P.C”
12. Contention of learned counsel for the appellants is that the appellants have been convicted only on two considerations; (1) the evidence of P.W 4, Jalaluddin Mondal, said to be an eye witness and (2) the confessional statement dated 5 August, 2002, of Nazrul Mondal under section 164 of the Cr.P.C made before the learned Magistrate.
13. As regards the first point is concerned, learned counsel for the appellants would submit that perusal of the evidence of P.W 4 shows that Rafiquiddin Ahmad Khan (since deceased) was murdered on 17 July, 2002 at about 10.00 A.M and at that time he (Jalaluddin Mondal) was cultivating the land of his maternal uncle. He saw the accused persons, viz. Dalu Mondal armed with pipe gun, Pintu with ‘Dao’, Nazrul with bomb, Sirajul with bomb and a little machine. This witness on the manner the offence was committed said that “Nazrul threw a bomb on the backside of Rafiq. Then he fell down from his bicycle. Then and then accd. Dolu Mondal fired upon his belley. Pintu assaulted Rafiq by a dao on his forehead. Again accd. Sirajul blasted a bomb. Thereafter Rafiq Ahmed Khan died on the spot.”
14. Relying on the aforesaid portion of the evidence of P.W 4, learned counsel for the appellants would argue that record shows that this story was narrated by Jalaluddin Mondal, P.W 4, which has also been narrated by P.W.s 1, 2, 3, 7 and 8, therefore, the evidence of P.W.s 1, 2, 3, 7 and 8 is hear-say and if the incident as described by P.W 4 falls or breaks, the evidence of all other witnesses would also fall.
15. In support of the contention that evidence of P.W 4 was not a credible one, learned counsel would rely upon the evidence of P.W 4, quoted above, wherein it has been stated “Pintu assaulted Rafiq by a dao on his forehead” and the evidence of autopsy surgeon Dr. Chandra Sekhar Roy, P.W 5, wherein the surgeon during his examination had not stated any injury on the forehead of the deceased. The injuries in the post-mortem report are as follows:
“1) one blunt injury on the right side of thigh.
2) bomb powder was on the body of deceased.
3) one gun shot injury over right side of chest. 1″ × 1″ chest cavity. 3½″ right lateral from anterior midline. 7″ from the easternal point. 47″ from the right heel. Exit to backside. Fracture 11 and 12 thoracic vertebra. Fracture ribs 5 to 8.”
16. Cross examination of the autopsy surgeon, P.W 5, has also been placed before us wherein he has stated that “I did not see any injury on the forehead of Rafiq”.
17. Learned counsel for the appellants submits that a comparison of the aforesaid evidences of P.W 4 and P.W 5 clearly proves that there is material discrepancy in the ocular and medical evidence. Whereas, in ocular evidence it has been stated by P.W 4 that a blow had been struck by ‘dao’ on the forehead of Rafiq by Pintu and such injury also was found in the body, as mentioned in the inquest report, strangely this injury is missing in the post-mortem report. It is stated that absence of this injury on the forehead of deceased Rafiq clearly shows that Pintu was not present on the spot or that Rafiq has been done away in the manner described by the eye witnesses and that Rafiq had many enemies and, therefore, it is also probable that any of his enemies might have committed the murder of Rafiq and that the accused persons, the appellants herein, have been falsely implicated in the case.
18. He emphasised that during preparation of the inquest report, the same witnesses who were said to be present there did not give any names of the accused persons but subsequently the names of the accused persons and the persons who are alleged to have killed Rafiq have been described to have their faces covered and hence, nobody actually identified those persons and under such circumstances the conviction of the appellants ought not be upheld.
19. He argued that it is apparent from the statement of P.W 4 that he had, for the first time, narrated the incident before the Court and that this witness (P.W 4) cannot be a credible ocular witness because on his own admission, as has been recorded, he stated that he could not remember whether he had stated all these facts before the police.
20. In so far as the confessional statement dated 5 August, 2002 given by Nazrul Mondal before learned Magistrate is concerned, it is argued by learned counsel for the appellants that the same cannot be accepted because firstly the accused Nazrul was taken to police custody after giving the said confessional statement, as reveals from record which indicates that the confessional statement was not given voluntarily, secondly, no oath was administered before recording the evidence of the two witnesses and thirdly acceptance of both inculpatory and exculpatory evidence of confessional statement vitiates the same.
21. He also argued that in so far as the purported confessional statement given by accused Nazrul Mandal is concerned, he has retracted from the same saying that these were tutored by the police; and that he never sustained any injury which proves that the said confessional statement was taken by force and, therefore, cannot be the basis of conviction and in view of large number of contradiction in evidence, it would not be permissible to convict the appellants on the basis of such evidence.
22. He submits that Nazrul was arrested on 4 August, 2002 and he had given his confessional statement on 5 August, 2002, therefore, he was denied protection of section 164(3) of Cr.P.C It is stated that it appears that he had given the confessional statement as he was under conception of threat of being remanded to police custody. In support of his contention, he has relied on a decision rendered in the case of Rabindra Kumar Pal Alias Dara Singh v. Republic Of India., reported in (2011) 1 SCC (Cri) 706. In paragraphs 64 and 68 of the said decision, it has been observed thus:
“64. The following principles emerge with regard to section 164 Cr. P.C:
(i) The provisions of Section 164 CrPC must be complied with not only in form, but in essence.
(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.
(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
(vii) Non-compliance with Section 164 CrPC goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.
(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
(ix) At that time of recording the statement of the accused, no police or police official shall be present in the open court.
(x) Confession of a co-accused is a weak type of evidence.
(xi) Usually the court requires some corroboration from the confessional statement before convicting the accused person on such a statement.
68. It is relevant to point out that under sub-section (3) of Section 164 CrPC that if any accused refuses to make any confessional statement, such Magistrate shall not authorise detention of the accused in police custody. Remanding Rabi Soren to police custody after his statement was recorded under Section 163 CrPC is not justified. As rightly observed by the High Court, the possibility of coercion, threat or inducement to the accused Rabi Soren to make the confession cannot be ruled out.”
23. It is also argued that P.W 2, who is stated to be an eye witness, is in fact an interested witness and, as such is not a trustworthy one. Furthermore, in his statement he has categorically stated that on hearing the sound of gun fire, he went far away from the place of occurrence, hence he could not have been an eye witness of the incident and in any case, extra judicial confession is a very weak piece of evidence as such, the same cannot be the basis of conviction, particularly when there was no reliable corroboration of facts, rather in this case there are significant inconsistencies and discrepancies which make the evidence inadmissible and unreliable.
24. Sri Subir Ghosh, learned counsel appearing for the State submits that the confessional statement was made by Nazrul Mondal before the learned Magistrate under section 164 of Cr.P.C and that all the formalities prescribed in the said section were strictly followed by the learned Magistrate before recording such statement. He submits that the learned Magistrate had enquired from the accused whether the statement was being made voluntarily or under pressure of any person and the accused was also warned that this statement may be used against him and sufficient opportunity was granted to Nazrul to reflect upon, before making the confessional statement.
25. Sri Ghosh has also placed reliance on the provisions of section 164(3) Cr.P.C and submits that in so far as retraction of confessional statement is concerned, this would not be applicable in this case. In support of this contention, he has relied on a decision of this Court, rendered in the case of Saroj Kumar Das v. State of West Bengal, reported in 2016 CRL. L.J 3602, wherein in paragraph 15, it has been observed thus:
“15. From perusal of the LCR, we find on June 17, 2001, during the trial, the statement of the victim PW/4, recorded under section 164 CrPC was tendered by the learned Public Prosecutor with a prayer for admitting the same, and the defence raised no objection and the same was marked as Ext.-5. Truly speaking, the said statement was admitted in terms of the provisions of section 294, CrPC, may be that the learned trial Judge has not in so many words noted down the same. Therefore, we are unable to accept the submissions of Mr. Basu, that the Ext.-5 was brought on record and marked exhibit, not in accordance with law. Since the Ext.-5 was exhibited under section 294, CrPC, no formal proof is necessary. However, it goes without saying, since, any statement recorded under section 164, CrPC, is not a substantive piece of evidence and can be used only for a limited purpose to contradict or corroborate the maker thereof, unless the maker of such statement proved the same to be one reduced into writing correctly as stated by him or her, the content thereof cannot be used for any purpose. It is not at all permissible in law for a trial court to consider such statement suo motu to draw any inference far less seek corroboration, what has been wrongly done in the case at hand.”
26. On the basis of the aforesaid judgment, he submits that the question raised by the appellants regarding retraction is of no help as in the facts and circumstances of this case, formal proof is not required for the reason that the learned Magistrate was also examined.
27. As regards the injury on the forehead, it is submitted by learned counsel for the State that omission to mention an injury in the post-mortem report giving rise to some confusion, should not be given much credence as all other injuries reported in post-mortem report were fatal injuries and matched the ocular version, the ocular evidence would prevail over medical evidence in such circumstances. All the four accused persons were seen on the spot or at the place of occurrence armed with weapons and were also seen inflicting the blows, by an eye witness. His evidence cannot be said to be unreliable only because of distance or because of the angle from which he was able to view the incident.
28. After hearing learned counsel for the parties and on perusal of the records, we find the following admitted facts:
1) That P.W 4 is an eye witness of the incident. He on the relevant date and time had seen the accused persons coming on the Pukuria Khantra Road carrying bombs, pipe gun, ‘dao’ etc. and had not only narrated who was carrying which weapon, but how and also in which manner they had murdered Rafiq who was returning home by cycle from Jampur field,
2) From the records it is apparent that Nazrul wanted to make confessional statement on the same day he was arrested, i.e on 4 August, 2002. He was insisting upon it but the learned Magistrate even then gave him time to reflect and on the next date, i.e on 5 August, 2002, the confessional statement of Nazrul was recorded after reflection,
3) The record shows that the learned Magistrate had satisfied himself that Nazrul was in a fit state to give his confessional statement by asking questions and had also warned Nazrul that the said confessional statement may be used against him in the court of law. In fact, learned Magistrate ensured that no police personnel is present near about and had made Nazrul of this fact known before recording the confessional statement,
4) Even when recording the confessional statement, learned Magistrate had asked Nazrul whether he was making the confessional statement voluntarily or under influence.
29. The record shows that Nazrul was not under any conception of threat of being sent to police custody after making of confessional statement and he had, on his own, given the confessional statement before the learned Magistrate under section 164 Cr.P.C
30. Apart from the aforesaid admitted facts and the arguments advanced by learned counsel for the parties, we have also gone through the evidence of the prosecution witnesses and the material evidence as well as the judgment of the trial court, impugned in this appeal.
31. The trial court in its judgment has noticed that Jalaluddin Ahamad Khan was the defacto complainant and had lodged the FIR on the facts informed to him by Akher Ali Mondal, Jalamuddin Mondal, Aleya Bibi, Abdul Bari and others. He had proved the written complaint (Exbt.- 1), seizure list dated 17 July, 2002 and also proved other material exhibits as well as the inquest report (Exbt. - 4). In his evidence, he has clearly stated about the motive thus:
“Before 8/10 days of murder of Rafiq a dispute arose in between Murshid and the accd. Persons regarding construction of a saloon in front of my land. There was a grudge against Rafiq and Murshid and his associates threatened Rafiq to kill him Rafiq was witness in “Khadim Karta Case”. All the four accd. Persons are present in Court today and I identified them. Police interrogated me regarding the incident. At present I have been passing my days in danger. Occasionally, I have been threatened over telephone. Administration provided one security guard for me and one police camp has been also provided by the police Administration.”
32. It appears that P.W 2, Akher Ali Mondal, made a statement before the Court saying that on that day when he was cultivating land he heard a sound of fire on Pukuria Road. Four persons were running towards him and told him to “LEAVE THE AAL” and they further told him that they have killed Rafique. He further stated that he saw musket in the hands of Dalu, Sirajul had bomb, Nazrul had also bomb and Pintu had dao and they fled away toward Jampur.
33. P.W 3, Abdul Bari deposed that on that day, at 10.00 a.m when he was standing at Jampur Pukuria Road, he heard a sound of bomb. Then he rushed to the place and from one school going boy came to know that Rafique had been murdered. He came to know about the murder from Julee. Then he saw the body of Rafique was lying in bleeding condition. He heard from Akheer Ali, P.W 2 and Jalal that the accused persons have murdered Rafique by machin, bomb and dao.
34. P.W.4, Jalaluddin Mondal, who is eye witness of the incident deposed that when he was cultivating the land of his maternal uncle he saw the accused persons coming on the Pukuria Khantra Road which runs from Pukuria to Jampur. He also saw that Dalu had Pipe Gun, Pintu had dao, Nazrul had Bomb and Sirajul also had bomb and a little machine in their hands. He saw that Rafique was returning on bicycle from Jampur. He saw that accused Nazrul threw a bomb on the back side of Rafique then he fell down from by-cycle and then accused Dalu fired upon his belly, Pintu also assaulted Rafique by a dao on his forehead and accused Sirajul again blasted a bomb and thereafter, Rafique died on the spot.
35. P.W 5, Dr. Chandra Shekhar Roy who performed the post-mortem stated that he found one bomb injury on the right side of thigh, bomb powder on the body of the deceased and one gun shot injury over right side of chest exit to back side. According to his opinion death was due to haemorrhagic shock followed by gun shot and bomb blast, homicidal and ante mortem.
36. P.W 6, Asgar Ali Kayal deposed that on 17 July, 2002 at about 10.oo a.m when he was cultivating at Jampur Kheya Ghat, he saw that accused persons being armed with bombs, pipe guns were going towards Jampur Kheya Ghat of Haran Mondal. He knew the accused very well and also identified them. He stated that he saw the accused persons to go to Dhoba Para village by a boat which was run by Razzak Mondal and he also saw Razzak to demand money but the same was refused by the accused persons. Thereafter, he came to know that those persons murdered Rafique and then he went to learned Magistrate of Basirhat and gave statement under section 164 of Cr.P.C
37. P.W 7 is the wife of the deceased who stated that she heard the sound of two bombs and firing and from Julu, i.e her brother-in-law who was then running towards her and came to know about the death of Rafique. Thereafter she went towards middle of Jampur Road where she found her husband lying in bleeding condition.
38. P.W.8, Sirazul Biswas stated that on 17 July, 2002, at about 10.00 a.m he came to know from some school going children that Rafique had been murdered and thereafter he rushed to the locale i.e Jampur Pukuria Road and found the body of Rafique in smearing of blood. He heard that the accused persons have killed Rafique as there was a dispute regarding construction of a saloon.
39. P.W 9, Ranjit Kumar Sinha who was posted as ASI at Haroa Police Station on 17 July, 2002, had filled up the FIR.
40. P.W 10, Swapan Kumar Das, S.I of Police held the inquest upon the dead body of Rafique. In the report he mentioned that there was a bomb injury on the hip of the dead body, injury of bullet on the right side of ribs front side and also deep wounds on the left side of forehead.
41. Sri Swapan Kumar Mohanti, the then S.D.J.M Basirhat, was examined as P.W 12. He had recorded the statement of Nazrul Mondal under section 164 Cr.P.C and the statement has been marked as Exbt.-1.
42. P.W.13, Mihir Kumar Mondal, was the then 2nd Additional Judicial Magistrate when he recorded statement under section 164 of Cr.P.C of Md. Akher Ali Mondal (Exbt.-12), Asgar Ali Koyal (Exbt.-13) and Razzak Mondal.
43. P.W 14, Alok Kanti Lodh, was posted as the officer-in-charge of Haroa Police Station. On 17 July, 2002 he received the written complaint from Jalaluddin Mondal and directed to register the case. He took up the investigation, went to the place of occurrence, held inquest over the dead body of the Rafique, prepared the sketch map and examined the witnesses present there. He conducted raid in the houses of the FIR named accused persons. He had arrested Pintu Mallick on 19 August, 2002 and Sahidul Mallick on 2 September, 2002. He submitted charge-sheet against the accused persons under sections 302/34/120B of Indian Penal Code read with section 25/27 of Arms Act and section 9(B) of Indian Explosive Act.
44. It appears from the evidences that the deceased Rafiq might have been involved in some criminal activities like kidnapping of “Khadim Karta” who was confined in the house of Rafiq but later on Rafiq had became an approver and also became a key witness in the said case. But the possibility of Rafiq having number of enemies and being murdered by any of such enemies is not there in this case for the reason that the accused persons have been named by the eye witness as perpetrators of crime of murder of Rafiq. Therefore, any doubt that some other persons might have committed the murder of Rafiq, does not exist.
45. Even the fact that P.W 4 and the deceased Rafiq were related, does not call for ignoring his statement. The law is well settled that in such circumstances where victim is related to the persons who are witnesses to an offence must be considered very carefully to rule out any false implication of the accused. The fact that a case under section 302 of the Indian Penal Code was pending against P.W 4 and as such, his evidence in the instant case should be ruled out to be an unreliable witness as a man against whom cases of criminal nature were pending. As argued by learned counsel for the appellants, this is not sustainable. Even a person of criminal nature can give credential evidence in another incident of criminal nature.
46. Even if the Shikal or the ‘dao’ used in the murder of Rafiq were not recovered but it is not a question of presumption that accused did not had in their possession the said weapons. Admittedly, all the accused persons were armed with weapons and murdered Rafiq as testified by the P.W 4, the eye witness. There may be a little discrepancy in the ocular evidence and the medical evidence as regards of the injuries. The weapon may not hit the forehead or had missed Rafiq when struck with the Shikal but undoubtedly the murder was a pre-planned one, the motive is also apparent as there has been a dispute 8/10 days before the incident with regard to construction of a saloon between Rafiq and the accused persons.
47. For all the reasons aforesaid, we do not find any ground to interfere with the finding of the learned trial Court holding the accused persons/appellants guilty of the offence charged with and the sentence awarded against them. The appeal is thus, dismissed.
48. Let a copy of this judgment along with the lower court records be sent down forthwith to the learned Court below for information and doing the needful.
49. A copy of this judgment be supplied to the appellants free of cost forthwith.