Order
1. Heard Mr Pijush Roy, the learned counsel appearing for the appellants and Ms Astha Sharma, the learned counsel appearing for the respondent (State of West Bengal).
2. This appeal has been filed by six appellants questioning the judgment and order dated 27-7-2005 Criminal Appeal No. 109 of 1996 passed by the Division Bench of the Calcutta High Court affirming the conviction of Appellants 1 to 6 under Section 148, Section 302 read with Section 34 of the Penal Code, 1860 (IPC). The learned counsel for the appellants has pointed out that Appellant 5 Abdur Rahman has died. Appellant 2 and Appellant 6 are absconding.
3. In view of the above, the appeal stands dismissed against Appellants 2 and 6 and stands abated against Appellant 5.
4. We thus have to consider the appeal only on behalf of Appellant 1 Jafel Biswas, Appellant 3 Bhiku Sk. and Appellant 4 Saidul Islam.
5. The prosecution case in brief is that on 25-9-1985 at about 10.30 a.m., victim Mokshad Ali and one Abdus Salam were proceeding towards their respective schools starting from their Village Ambarpur on separate bicycles and the de facto complainant Siddik Sk. was behind them on his own bicycle.
6. Mokshed Ali was a school teacher whereas Abdus Salam was also a teacher in the same school. Mokshad Ali was also the Anchal Pradhan for the last seven years. When Mokshad Ali and Abdus Salam reached near the wheat grinding mill, the accused Jafel Biswas assaulted the victim with a lathi as a result of which victim fell down from the cycle and then other accused persons started assaulting the victim with hasua causing severe injuries on his body and the victim succumbed to his injuries on the spot.
7. Abdus Salam who was accompanying the victim on bicycle was at a distance of about 15/16 cubits ahead and on hearing the cry, he looked back and saw the accused. The police was informed and a FIR was lodged at about 3.15 p.m. in the afternoon. Written complaint was submitted and inquest was prepared and post-mortem was conducted. In FIR names of 7 accused persons were mentioned which included name of all the appellants. A report under Section 157 of the Code of Criminal Procedure, 1973 (CrPC) could be sent to the Magistrate after delay of about 3 months i.e. on 20-12-1985 and the Magistrate initiated the order sheet on 20-12-1985 on the basis of the FIR. A charge-sheet was submitted against 10 accused persons. Trial court discharged two persons and only 8 accused were sent on trial. The prosecution has produced 20 witnesses to support the prosecution case. None was examined on behalf of the defence.
8. The trial court after evaluating the evidence of all the witnesses of whom PW 1, PW 4, PW 7, PW 10 and PW 11 were treated as eyewitnesses. Trial court convicted the appellants under Sections 148/302/149 IPC. All the appellants were sentenced to suffer life imprisonment. Aggrieved by the conviction, the appeal was filed before the High Court.
9. The High Court after considering the submissions made before it, by way of impugned judgment had dismissed the appeal.
10. Aggrieved against the said judgment, this appeal has been filed.
11. The learned counsel for the appellant challenging the decision of the High Court submits that the fact that FIR was lodged on 25-9-1985 and the report under Section 157 CrPC could reach the Magistrate on 20-12-1985 in which instead of seven names, 10 accused were mentioned, causes prejudice to the accused and this ground is itself sufficient to vitiate the conviction. The learned counsel further submitted that PW 11 who was accompanying the victim had named only three persons, namely, Hamidul, Moksed and Sader. He submits that since only three assailants were mentioned, the prosecution case falls on that ground itself as there were seven accused who have allegedly assaulted the victim. He further submits that apart from PW 11, there was no other eyewitness and the courts below had committed error in treating PW 1, PW 4, PW 7, PW 10 as eyewitnesses. He further submits that the prosecution failed to prove any motive of murder and there being no motive proved, the doubt is created on the whole incident and charge which has been levelled on the accused. He further submits that PW 8, wife of the victim in her statement has stated that victim started for school after taking the food, but from report of the doctor, PW 16, it is not proved that any food particles were present, which belies the entire evidence of PW 8. He lastly submits that prosecution has failed to prove any motive.
12. The learned counsel appearing for the State refuted the submission of the appellants and contends that the incident took place in broad daylight at about 10.30 a.m. on the street. PW 11 who was accompanying the victim has seen the incident and there were other eyewitnesses i.e. PW 1, PW 4, PW 7 and PW 10, whose presence have also been proved and believed by the courts below. They have clearly mentioned about all the accused and the role played by them which has been believed by both the courts below after appreciation of evidence.
13. It is further submitted that insofar as a report under Section 157 CrPC is concerned, which was submitted with delay, the issue has been considered by the High Court and the High Court has noted the lapse and observed that officer concerned was callous and unmindful of his duty as a public servant. But it has to be found out from the other evidence on record that the FIR on which the prosecution has relied was a genuine FIR or not. It is further submitted that both the courts below have rightly believed the statement of eyewitnesses and convicted the accused and there are no grounds in the appeal.
14. We have considered the submission of the learned counsel for the parties and perused the record.
15. The first submission on which the learned counsel for the appellants has placed heavy reliance is non-compliance with Section 157 CrPC. Section 157 CrPC reads as follows:
“157. Procedure for investigation.—(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that—
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case:
Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.”
16. The purpose and scope of Section 157 CrPC has time and again been considered by this Court in large number of cases.
17. The learned counsel for the appellant has relied on State of Rajasthan v. Daud Khan (2016) 2 SCC 607, Sheo Shankar Singh v. State of U.P. (2013) 12 SCC 539 and Bijoy Singh v. State of Bihar (2002) 9 SCC 147.
18. In State of Rajasthan (2016) 2 SCC 607 in paras 27 and 28, this Court has laid down as follows:
“27. The delay in sending the special report was also the subject of discussion in a recent decision being Sheo Shankar Singh v. State of U.P. (2013) 12 SCC 539 wherein it was held that before such a contention is countenanced, the accused must show prejudice having been caused by the delayed dispatch of the FIR to the Magistrate. It was held, relying upon several earlier decisions as follows:
‘30. One other submission made on behalf of the appellants was that in the absence of any proof of forwarding the FIR copy to the jurisdiction Magistrate, violation of Section 157 CrPC has crept in and thereby, the very registration of the FIR becomes doubtful. The said submission will have to be rejected, inasmuch as the FIR placed before the Court discloses that the same was reported at 4.00 p.m. on 13-6-1979 and was forwarded on the very next day viz. 14-6-1979. Further, a perusal of the impugned judgments of the High Court 2003 SCC OnLine All 1214, (2004) 48 ACC 732 as well as of the trial court discloses that no case of any prejudice was shown nor even raised on behalf of the appellants based on alleged violation of Section 157 CrPC. Time and again, this Court has held that unless serious prejudice was demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating (sic) effect on the case of the prosecution. Therefore, the said submission made on behalf of the appellants cannot be sustained.
31. In this context, we would like to refer to a recent decision of this Court in Sandeep v. State of U.P. (2012) 6 SCC 107 wherein the said position has been explained as under in paras 62-63:
“62. It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under Section 157 CrPC instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 as FIR No. 116 of 2004 and it was altered on 20-11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab (1972) 2 SCC 640 wherein this Court has clearly held that where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.
63. Applying the above ratio in Pala Singh (1972) 2 SCC 640 to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Sarwan Singh v. State of Punjab (1976) 4 SCC 369, Anil Rai v. State of Bihar (2001) 7 SCC 318 and Aqeel Ahmad v. State of U.P. (2008) 16 SCC 372”’
28. It is no doubt true that one of the external checks against antedating or ante-timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. The dispatch of a copy of the FIR “forthwith” ensures that there is no manipulation or interpolation in the FIR. (2014) 12 SCC 312 If the prosecution is asked to give an explanation for the delay in the dispatch of a copy of the FIR, it ought to do so. (1994) 5 SCC 188 However, if the court is convinced of the prosecution version's truthfulness and trustworthiness of the witnesses, the absence of an explanation may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case. (2013) 12 SCC 316”
19. The obligation is on the IO to communicate the report to the Magistrate. The obligation cast on the IO is an obligation of a public duty. But it has been held by this Court that in the event the report is submitted with delay or due to any lapse, the trial shall not be affected. The delay in submitting the report is always taken as a ground to challenge the veracity of the FIR and the day and time of the lodging of the FIR.
20. In cases where the date and time of the lodging of the FIR is questioned, the report becomes more relevant. But mere delay in sending the report itself cannot lead to a conclusion that the trial is vitiated or the accused is entitled to be acquitted on this ground.
21. This Court in Anjan Dasgupta v. State of W.B. (2017) 11 SCC 222 (of which one of us was a member, Hon'ble Ashok Bhushan, J.) had considered Section 157 CrPC. In the above case also, the FIR was dispatched with delay. Referring to an earlier judgment (2006) 10 SCC 432 of this Court, it was held that in every case from the mere delay in sending the FIR to the Magistrate, the Court would not conclude that the FIR has been registered much later in time than shown.
22. The High Court has rightly noted this submission and opined that to find out whether the FIR is genuine or not, and whether the trial court has rightly convicted the accused or not, the entire evidence has to be looked into.
23. On delayed dispatch of FIR, some prejudice has to be proved by accused. The prejudice which was sought to be projected by the appellants is that in FIR names of only 7 accused were mentioned but in the report sent to the Magistrate there were 10 names. For the present case, it is sufficient to notice that name of all the appellants were very much in the FIR, hence addition of three names in report can in no manner prejudice the appellants.
24. For considering the submission of the learned counsel for the appellants that it is only PW 11 who is the eyewitness and the others are not eyewitnesses, it is relevant to notice the evidence which was given by PW 1, PW 4, PW 7 and PW 10. The trial court in its judgment has considered the evidence of all the eyewitnesses. The parties are not at variance that prosecution case is that PW 11 was accompanying the victim and both were going to school on different bicycles, PW 11 being at a few cubits ahead of the victim when they reached the grinding mill. PW 1 in his statement has clearly stated that he was coming on his bicycle behind the victim and PW 11. The evidence of PW 1, PW 4, PW 7, PW 10 and PW 11 has been marshalled by the trial court and it is useful to refer to the relevant discussion of their evidence by the trial court which is to the following effect:
According to the evidence of PW 1 on 8th Aswin about 5/6 years ago between 10 & 10.30 a.m. while he was going to Piprupuri for purchasing jute along Ambarpur-Karikarpara Road and Mokshed who was an Anchal Prodhan school teacher along with Abdus Salam (PW 11) were going to school in two cycles. The former (i.e. Mokshed) being behind Salam at a distance of about 15/16 cubits and they reached near the Mill ghar of Asmat Sk. Accused Jafel, Mokshed, Viku, Saidul & Abdur Rahaman being armed with hensua and one being armed with lathi came together from the front side of millghar, Mokshed was assaulted first with a lathi-blow followed by assault with hesos repeatedly resulting his fall on the road from cycle, sustaining 9/10 injuries on his person including coming out of his intestine materials due to hit with after about 2/3 hours while he disclosed that he witnesses the occurrence and thereafter he narrated the incident to Jainuddin who wrote the complaint which was made over by him to the police on the spot. To a suggestion that assaults were not inflicted in the mode and manner as deposed, he categorically denied it which leads to suggest that assaults were inflicted in other manner, and so that the accused persons committed his murder by assault there is no denial of it in his cross-examination.
***
… with his cart loaded with jute reached near the mill ghar bicycle being followed by Mokshed master on another bicycle and accused Jofel struck the bicycle of Mokshed with a bamboo resulting in his fall on the road from the cycle followed by assault on him by accused Mokshed Sader, Hamidul, Jofel with hesos, lathi and fala repeatedly for which his stomach materials came out and he died instantaneously.
***
PW 7 (father of PW 1) at about 10/10.30 a.m. while going to the shop of Azad at Ambarpur for purchasing manure found the said shop closed and on hearing a cry from the northern direction proceeded towards it and found accused Abdur Rahaman, Saidul, Jofal, Hanudul Viku, Sader and Nokshed being armed with hesos fala and lathi to flee away after crossing the canal. On seeing it he went to the P.O. i.e. front side of the local mill-ghar in the vicinity of the house of Akali and found Mokshed lying dead with blood coming out of his person and Siddiqui (PW 1) Asmat, (PW 10) Salam (PW 11) & Entaj (PW 4) present there and on their cry about 2000 people assembled.
***
PW 10 while come to the mill-ghar of Asmat Sk. At about 10/10.30 a.m. to take delivery of rice given for husking, he found the mill ghar closed and accused Sader & Jafel sitting on the bench outside the said mill ghar with a heso & lathi in their hands and he himself sat by their side. He also found accused Mokshed & Hamdul sitting by the side of wall of Akali with lathi & heso and after some time when Salam (PW 11) & Mokshed were coming by the road on two bicycles, accused Viku came there and dealt with a lathi-blow on the hand of Mokshed followed by assault on him by accused Hamdul with heso resulting in his fall on the ground and then accused Jofel, Mokshed, Hamdul, Sader, Viku and others started hitting him repeatedly for which he assaulted nine injuries, his stomach materials came out and he died instantaneously.
According to the evidence of PW 11, he & Mokshed used to go to school very often along the same village road and for the last four days preceding the date of incident Mokshad did not attend the school on 25-9-1985 at about 10/10.30 a.m. they started together to attend the school in two cycles and he was ahead of about five cubits of Mokshed who was following him. When they reached in front of the wheat grinding & rice-husking mill of Asmat. They found accused Hamdul, Mokshed, Sader with hesos & lathi sitting on the ground and after some time on hearing a cry from behind he looked back and found the said three accused. Along with 4/5 others viz. Jofel, Viku & Saidul to assault Mokshed with hesos & lathis at random.
25. The evidence as given by those witnesses clearly proves their presence on the spot and they having witnessed the incident and have given the true account.
26. The learned counsel for the appellants has submitted that PW 11 in his statement has mentioned only three names i.e. Hamidul, Moksed and Sader. According to the learned counsel for the appellants, since PW 11 has named only three assailants, therefore, there cannot be more than three assailants according to the eyewitness himself.
27. For appreciating the above submission, we have to look at the evidence of PW 11. It has come in his statement “On reaching near the mill we found 3 persons sitting on the ground. They were Hamidul, Modsed and Sader. They had hesos and lathis with them.”
28. The above statement of PW 11 only indicates that when he reached near the mill, he found 3 persons Hamidul, Moksed and Sader. By taking name of these three persons, it does not mean that other accused were not present. He has only seen these three persons sitting on the ground.
29. Coming to the evidence of PW 10. PW 10 in his statement has stated that he found two persons sitting on the bench outside the mill. They were Sader Sk. and Jofel Sk. He further stated that he found Mosked Sk. and Hamdul Sk. sitting by the side of the wall of Akali Sk.
30. It is useful to extract the above statement:
“I came to the millghar of Asmat to take delivery of the rice which I gave for husking. The mill was closed. I found two persons sitting on the bench outside the mill. I sat by the side of the said two persons. They were Sader Sk. and Jofel Sk. who were sitting on the bench.
They had one lathi and one heso in their hands. I found Mosked Sk and Hamdul Sk. with lathi and heso in their hands sitting by the side of the wall of Akali Sk. After sometime, Salam and Moksed were coming on the road on two bicycles. At that time Viku came there and dealt a lathi-blow on the hand of Moksed. At that time Salam was in front of the house of Akali. There is a single village pathway in between the mill of Asmat and the house of Akali. Thereafter Hamdul came and gave a blow by heso to Mosket as a result of which Moksed fell on the ground. Then Jofel Sk. Moksed Sk. and Hamdul, Sader, Viku and others came and started hitting Mokset repeatedly. His stomach materials came out of the belly and I found many marks of injury on the body of Mokset. I found 9 marks of injuries on the person of Moksed. Mokset died instantaneously after making a sound.”
31. The above statement makes it clear that he also saw two persons sitting on the bench and others sitting near the side of the wall.
32. Thus the above statement clearly indicates that all accused were not sitting together and the fact that PW 11 has seen only three persons does not indicate that only three persons were present on the spot. When the evidence of PW 11 is read with the evidence of PW 10, it is clear that other accused were also present.
33. The submission of the learned counsel for the appellants that since only three accused persons were named by PW 11, other persons have been falsely implicated cannot be accepted.
34. The submission of the learned counsel for the appellants that in evidence of PW 8, wife of the deceased, has stated that victim had his meal before starting from residence, however, in the statement of doctor, PW 16, no food stuff was found in the stomach creates a strong suspicion about the evidence of PW 8.
35. Present is the case where the time of the incident is fully proved i.e. in broad daylight at about 10.30 a.m. Large number of eyewitnesses have proved the incident and the time of the incident.
36. The learned counsel for the State in her submission has stated that it has come in evidence that the intestines of the victim were ruptured and had come out due to injuries.
37. The status regarding food in the stomach becomes relevant when there is an issue regarding the time of incident. Then the evidence about taking meal may be of some relevance, but in the present case, there is no issue regarding the time of the incident and eyewitnesses have proved the incident by eyewitness account. The evidence of PW 8 does not come to any help to the appellant-accused in the present case.
38. The learned counsel for the appellant has also contended that prosecution failed to prove any motive of committing the murder. The trial court has elaborately dealt with this submission. Relying on the judgment of this Court reported in State of Haryana v. Sher Singh (1981) 2 SCC 300, it was held that absence of motive does not disperse a prosecution case if the prosecution succeed in proving the same. The motive is always in the mind of person authoring the incident. Motive not being apparent or not being proved only requires deeper scrutiny of the evidence by the courts while coming to a conclusion. When there are definite evidence proving an incident and eyewitness account prove the role of accused, absence in proving of the motive by the prosecution does not affect the prosecution case. In para 10 of State of Haryana (1981) 2 SCC 300 following was laid down:
“10. The prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is known only to the perpetrator of the crime and may not be known to others. If the motive is proved by prosecution, the court has to consider it and see whether it is adequate. In the instant case the motive proved was apparently inadequate, although it might be possible.”
39. The trial court has marshalled the eyewitnesses evidence and has rightly convicted the appellant-accused.
40. The High Court has also considered the evidence and has satisfied itself about the correctness of the findings recorded by the trial court and has not committed any error in affirming the judgment of conviction of the trial court.
41. In view of the foregoing discussion, we do not find any error in the judgment of the High Court. The appeal is, accordingly, dismissed. The appellants are on bail, the bail bonds stand cancelled. The appellants shall be immediately taken into custody.