Crl.A. 170/2009 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE B. K. SHARMA JUDGMENT AND ORDER (ORAL) Amitava Roy, J Being aggrieved by their conviction under Section 302/149 of Indian Pena l Code (hereinafter for short IPC) and sentence to suffer imprisonment for life and also to pay a fine of Rs. 5,000/- each, in default, to undergo RI for furthe r 6 (six) months, as recorded in the judgement and order dated 8.10.2009 by the learned Additional Sessions Judge (Fast Track Court), Cachar, Silchar, in Sessio ns case No. 22/2008, the appellants are in appeal. Incidentally though, alongwi th them one Shri Pradip Ghosh was also made to stand trial by the decision impug ned herein, he was acquitted of the aforementioned charges. 2. We have heard Mr. A.M. Mazumdar, learned senior counsel assisted by Mr. I.H.Laskar & Mrs. S. Seal, Advocates for the appellants, Mr. Z. Kamar, the learn ed PP, Assam and Mr. N.J. Das, Advocate, for the informant. 3. The trial from which the impugned decision emerges, is traceable to the FIR dated 17.7.2005, lodged by one Shri Sunil Baishnab with the Officer-in-Charg e of Gumrah PIC alleging that at about 10 p.m. on 16.7.2005, the accused appella nts out of previous grudge, came in a truck bearing No. AS-01-C/7419 from the si de of Baleswar Stone Quarry and after stopping the same in front of his office at Digarkhan, assaulted his brother Agni Baishnab. According to the informant, h e was at that point of time sitting in his office along with Shri Lembadhar Bais hnab and Debendra Baishnab and that seeing the assault, they came out raising al arm. On reaching the place of occurrence, they saw that the injured was lying on the ground. According to the informant, the accused appellants then boarded in the truck in which they had come and the accused appellant No.1 drove it over th e injured killing him on the spot. It was further alleged that at the time of fl eeing, the truck hit a Maruti Car bearing registration No. AS-11-A/4244, belongi ng to one Amar Chand Jain damaging it in the process. 4. On the basis of the said FIR, Katigorah PS case No. 239/05 was register ed under Section 302/427/34 of the IPC. Investigation followed and eventually a charge sheet was laid against the accused appellants and one Shri Pradip Ghosh. The learned trial court framed charge against the accused persons under Section 302/149 of the IPC, to which accused appellants pleaded Not guilty and claimed to be tried. 5. During the trial, the prosecution examined 9(nine) witnesses including t he Doctor who had performed the post mortem examination as well as 3 (three) Inv estigating Officers conducting the process at successive stages. The defence did not examine any witness. The statements of the accused appellants under Section 313 of the Cr.P.C. were recorded and eventually by the judgement and order impu gned herein, the appellants were convicted and sentence as herein above. 6. Before adverting to the rival submissions, it would be essential to make a brief survey of the evidence on record. 7. PW-1 Shri Sunil Baishnab, the informant stated on oath that on the date of occurrence at about 10/10-15 p.m., he was sitting in his office at Digarkhal at Silchar-Shillong road and was talking to Debendra Baishnab and Lembadhar Bais hnab. The Truck No. AS-01-C/7419 came and stopped in front of his office and the accused appellants came down there from. He further stated that the accused app ellant No.1 then dealt a blow on the head of his brother Agni Baishnab with a ir on lever of the truck while he (Agni) was standing nearby. The witness further s tated that thereafter the accused appellant No.2 Alok Paul assaulted the injured with a stone on his right ear. This was followed by assaults by accused appella nt No.4 also by a stone. The witness stated that the accused appellants also ass aulted the injured with stone boulders, for which he (Agni) fell on ground susta ining several injuries. The witness further deposed that as he raised alarm and rushed to the injured to save him, the accused appellant No.1 boarded the truck and started it. As the other accused appellants also boarded the same, the accus ed appellant No.1 drove the truck over the injured lying on the ground and there after dashed against a Maruti Car, parked by the side of the road and then escap ed. According to the witness, he then went to the Gumrah Police Out Post and inf ormed the police verbally about the incident. Thereafter, he came back to the pl ace of occurrence with the police. The witness stated about the conduct of the i nquest of the dead body and proved the inquest report Ext.1. According to him, t he dead body was taken to the Police Out Post and thereafter was forwarded to th e Silchar Medical College and Hospital for post mortem examination. The witness affirmed the presence of electric light in his office at the relevant time. He a lso stated about electric light outside a sweetmeat shop near the place of occur rence. He proved the FIR Ext.2 with his signature Ext. 2(1). He stated about the seizure of the truck and Maruti Car by the police. In cross examination, this witness stated about the presence of 10-15 shops at D igarkhal, near his office. He also confirmed about plying of many vehicles over the National Highway round the Clock. While stating that the occurrence lasted f or about 2/3 minutes, he also disclosed about the presence of 10/15 persons at t he place of occurrence. According to him he made verbal information to the polic e on the date of the occurrence. He lodged the FIR after the body was cremated o n the next day. 8. He denied the suggestion of not having given verbal information to the P olice Out Post in the night of the occurrence. He also denied the suggestion of not having stated to the police about the assault by the accused appellants Alok , Jhalak and others with stones. He denied the suggestion as well that the accus ed appellants did not drive the truck over his brother. The witness also denied the suggestion of the defence that at or about the time of the occurrence Shri P radip Ghosh was coming that way driving the truck from Baleswar Quarry alongwith one Shri Sajal Namasudra (accused appellant No.3), Handiman of the vehicle and that when the vehicle reached near the office of the informant, he alongwith his brother Agni and other relations tried to stop the same and in the process hack led the Driver. The witness denied that thereafter Agni (deceased) got up on the footstep of the truck and holding the collar of the driver, tried him to bring down and in the course of the scuffle, he (Agni) fell down under the truck susta ining injuries. He denied the suggestion that all the accused appellants had ass aulted the deceased and that they were not in any way responsible for the death of his brother. 9. PW-2 Shri Debendra Baishnab also testified that the occurrence took plac e on 16.7.2005 at about 9-30/10 pm, while he was talking to Sunil Baishnab (PW-1 ) alongwith one Shri Lembadhar Baishnab in his (informant’s) Office. He stated t hat suddenly a truck appeared and stopped in front of the office. The witness st ated that at that time, the deceased was outside the office. According to him, t he accused appellant No. 1 came down from the truck with a lever and along with accused appellants No. 2, 3, 4 & 5 started assaulting the deceased. He stated th at the first assault was made by the accused appellant No.1 on the head of the d eceased with the lever that he was carrying. This witness stated that the other accused appellants assaulted Agni with stones as a result, the injured fell on t he road. As the witness alongwith PW-1 raised alarm, the accused appellant No.1 took the wheels of the truck and after calling his brothers to get up on it and drove over the injured lying on the road, thus killing him instantly. He further stated that the truck at that point of time was loaded with stones and boulder s. The witness proved the inquest report Ext. 1 with the signature Ext. 1(2). He stated that the police had taken the dead body in the night of the occurrence t o the Out-post. 10. In cross examination, this witness denied the suggestion about his omiss ion to state before the Police that the accused appellant No.1 had driven the tr uck over the injured. This witness too denied the suggestion of the defence with which the PW-1 was confronted. 11. The evidence of PW-3 Shri Lembadhar Baishnab is substantially in the sam e lines. He asserted his presence at the place of occurrence at 10/10-15 pm on 1 6.7.2005, talking to PW-1 in the office of the former. He similarly stated that the truck in which the accused appellants had been travelling, stopped near the office and that thereafter the accused appellant No.1 assaulted the deceased wi th a iron lever on the head. He also reiterated that the other brothers of the a ccused appellant No.1 thereafter assaulted the injured with boulders. According to this witness as well on hearing the alarm raised by PW-1 and PW-2 and himself , the accused appellants boarded the truck and drove away in a hurry crushing th e injured under its wheels. This witness stated too that at that point of time, the accused appellant No.1 had driven the truck. Presence of electric light at t he place of occurrence was also affirmed by this witness who also stated that po lice had visited the place of occurrence in the night and had taken the dead bod y to the Police Out-post. In cross examination, this witness confirmed about the verbal information of the incident to the police before the FIR was lodged. The suggestion of the defence similar to the one as given to PW-1 and PW-2 was deni ed by the witness. 12. PW-4 Dr. Y.N. Singha, in course of his deposition stated to have detecte d the following injuries on the dead body at the time of its post mortem examina tion. Injuries Injury No.1 - Lacerated injury present in the scalp over occipital parietal (lef t) and frontal area of the scalp 15 x 7 x bone deep. 2. Fracture present in the occipital bone frontal bone and left parietal bo ne. The brain matter came out through the injury. 3. Multiple abrasion present over the face size varying from 4 x 3 cms to 2 x 1 cm. 4. Multiple abrasion present in the neck size varying from 5 x 4 cms to 2 x 1 cm (in front). 5. Multiple contusion present in both sides of the forearm size from 6 x 3 cms to 2 x 1 cms. 6. Lacerated injury present in between the little finger and ring finger ex tended upto wrist joint on the right side 7 x 2 cms. 7. Multiple abrasion present in the right hand size from 3 x 2 cms to 1 x . 5 cm. 8. Lacerated injury present left in front size 15 x 3 cms x Bone Deep. 9. Fracture present in left femur, right femur, hip bone and both tibia fib ula below the knee joint (both sides). 10. Lacerated injury present right leg below the knee joint upto foot (right ) 18 x 6 cms x Bone deep. 11. Contusion present over the chest over the sternum 12 x 5 cms. 12. Multiple abrasion present left side of knee joint size from 3 x 2 cms t o 1 x .5 cm. This witness opined that the death was due to shock and haemorrhage and coma (co mbined effect) resulting from the injuries, which were ante-mortem and caused by blunt force impact. This witness also stated that such injuries might be caused by vehicular accident. He proved the post mortem report Ext. 3 with his signatu re Ext. 3(1). 13. The evidence of PW 5 Shri Abdul Matin Borbhuiya and PW-6 Shri Dulal Bai shnab is not of much significance as the former is the scribe of the FIR lodged and the PW-6 is the witness to the seizure of the Maruti Vehicle. 14. PW-7 Shri Kajal Kanti Das, PW-8 Shri Saradindhu Bhusan Dey and PW-9 Shri Amitava Bhattacherjee, are the Investigating Officers of the case. On a reading of their depositions, it appears that PW-9 had conducted the investigation at t he final stages and had lodged the charge sheet. This witness in details deposed about the steps taken in course of the investigation. He proved the GD entry (E xt.6) with his signature {Ext.6(1)} as well as sketch map prepared by him (Ext.7 ) and his signature Ext. 7(1). The inquest report Ext.1 was also proved by him. The seizure of the truck and Maruti vehicle too was proved. In cross examination, this witness discloses that the inquest was not possible i n the night of the occurrence due to heavy down pour and darkness. He confirmed the registration number of the Truck as AS-01-C/7419 and with reference to the G D entry, stated that the said vehicle had arrived at the place of occurrence wit h boulders. He proved the statement of the accused appellant No.3 recorded under Section 164 Cr.P.C. (Ext. C). He admitted with reference to Ext.7 sketch map th at there was no mention of electric light therein. 15. On being confronted, this witness with reference to the Case Diary, stat ed that the PW-1 had not stated before him that the accused appellants Alok, Jha lak and others had assaulted the injured with stones but stated that he had been assaulted. This witness also referred to the omissions of PW-1 about his statem ent regarding presence of electric light in his (informant’s) office as well as outside the sweetmeat shop of one Parimal Paul. Similarly, this witness with ref erence to PW-2 Shri Debendra Baishnab deposed that he (PW-2) had not stated befo re him that the accused appellant No.1 had driven the truck over the injured and four other accused appellants had boarded it by then. 16. Mr. Mazumdar, learned senior counsel has persuasively argued that the pr osecution case having regard to contradictions in the GD entry vis-à-vis the FIR and the versions of PW-1, PW-2 and PW-3 is wholly untrustworthy, and therefore, the conviction of the accused appellants has been per se illegal rendering the impugned judgement and order un-sustainable in law. According to the learned sen ior counsel, the contents of the GD entry and the FIR militate against each othe r and thus destroy the substratum of the prosecution case. According to him, the prosecution sought to improve its case by proving the FIR, which was otherwise uncalled for. In particular, Mr. Mazumdar, pointed out that in the GD entry, the names of accused appellant No.3 Sajal and accused appellant No.5 Bipendra as we ll as Pradip Ghosh were omitted, evidently as they were not involved in the inci dent as sought to be projected and that their subsequent incrimination was an af ter thought. While contending that none of the other 10/15 persons said to have assembled at the place of occurrence had been examined by the prosecution withou t any explanation whatsoever, Shri Mazumdar, has insisted that the evidence of P W-1, PW-2 and PW-3 does not inspire confidence and ought to be rejected in toto. The failure of the investigating agency to seize the iron lever as well as the stones by which alleged assaults have been made on the injured also renders the prosecution case un-creditworthy he urged. As the medical witness had failed to identify the injuries with the assaults said to have been made by the iron lever or the stones, the complicity of the accused appellants have not been proved, h e argued. There being irreconcilable statements with regard to the time and venu e of the inquest over the dead body, the learned court below ought to have rejec ted the prosecution case inlimine, he contended. Referring to the evidence of PW -9, Mr. Mazumdar has pleaded that it is apparent that there was no light at the place of occurrence and thus the testimony of PW-1, PW-2 and PW-3 about the iden tification of the accused appellant being seriously in doubt, their involvement in the occurrence is not established. Standing by the suggestion made by the def ence to PW-1, PW-2 and PW-3, Mr. Mazumdar has urged that the deceased having bee n killed in a vehicular accident in which the accused appellants had no role to play, the impugned decision ought to be interfered with in the interest of justi ce. 17. Refuting the above, Mr. Kamar, has argued that PW-1, PW-2 and PW-3 being natural witnesses, having regard to the existing set of facts and their eviden ce, corroborative of each other, the case of the prosecution has been proved bey ond all reasonable doubt and no interference in the impugned judgement is thus c alled for. Referring to the post mortem report, the learned PP has contended tha t the injuries as recorded therein fully accord with the series of assaults narr ated by PW-1, PW-2 and PW-3 as well as those likely to be suffered by a person r un over by a heavy vehicle. According to Mr. Kamar, the variations in the GD en try and the FIR are not material at all to reject the prosecution case on that c ount. He contended that the statement of the IO (PW-9) about the absence of any mention of light in the sketch map per se does not efface the evidence of PW-1, PW-2 and PW-3 to the contrary. In all, the learned PP urged that having regard t o the over whelming evidence of PW-1, PW-2 and PW-3, conviction and sentence rec orded by the learned trial court is un-assailable and ought not to be interfered with. 18. We have closely considered the evidence on record as well as the argumen ts advanced. Admittedly, the GD entry (Ext.6) carried the information first in p oint of time about the incident. A perusal thereof reveals that the same was rec orded on 11.05 pm of 16.7.05 at the Gumrah PIC under the Katigorah Police Statio n. The same discloses that the informant Sunil Baishnab (PW-1) had lodged the in formation at about 10-15 pm to the effect that the accused appellant No.1, 2 and 4 had assaulted the injured and had dragged him from his office whereupon he wa s felled on the road and that thereafter the accused appellant No.1 had driven t he truck over him, as a result of which, he died instantaneously. The GD entry r eveals that on receipt of the said information, the officer concerned took steps to investigate the matter. 19. The FIR (Ext.2) lodged on 17.7.2005 refers to all the accused appellants , who according to contents thereof, had come in a truck AS-01-C-7419 to feed fa t their previous grudge and after stopping it in front of the office of the info rmant had started assaulting the injured. The FIR discloses that on being assaul ted and having sustained injuries there from, the injured fell on ground and tha t thereafter the accused appellant No.1 drove the above truck over him killing h im on the spot. 20. The GD entry and the FIR when placed together demonstrates the omission on the part of the informant to involve accused appellant Nos. 3 and 5 in the oc currence at the time when the first verbal information was made relating to the occurrence. Apart from the above, the substance of the informations carried by b oth the documents is the same. Having regard to the fact that the GD entry was r ecorded on a verbal information made by the informant immediately after the occu rrence in a very troubled and bewildered state of mind, in our considered opinio n, such an omission per se cannot be construed to be that fatal to reject the pr osecution case on that count alone. The FIR was lodged as the evidence discloses after the deceased was cremated the next day and it is natural that in a compar atively calm mental frame, the informant recollected the incident as a whole and included the names of the accused appellants No. 3 & 5. This disparity between the GD entry and the FIR, to reiterate, in our opinion does not annihilate the e difice of the prosecution case. 21. The noticeable variance in the place of occurrence is also not of much s ignificance having regard to the series of events in quick succession resulting in the death of the deceased. This is more so, in view of the otherwise consiste nt testimony of the PW-1, PW-2 and PW-3. On this count as well, in our opinion t he prosecution case is not liable to be rejected. The statement of PW-1 Shri Sun il Baishnab about the assembly of 10/15 persons at the place of occurrence by it self does not follow that they had witnessed the incident. In that view of the m atter, the non-examination of those persons as well ipso-facto does not render t he prosecution case un-believable. The testimony of PW-1, PW-2 and PW-3 complem enting each other provides a sequence of events which projects a clear, vivid p icture of the incident. 22. A combined reading of the evidence of these three witnesses does not on the face of it disclose any incompatible feature or features effacing each other , leaving the prosecution case in shreds. On the other hand, in our estimate not only their testimony deals with the minor details of the incident in cohesion w ith each other, the same demonstrates the involvement of the accused appellants in clear terms. The omission of the investigating agency to seize the iron lever or the boulders by which the injured had been assaulted is not in the face of t he above, terminal for the prosecution. True, it is that the medical witness has not in clear terms identified the injuries sustained by the deceased with the a ssaults and the weapons used but had opined generally that the same had been cau sed by blunt force impact. The fracture in the occipital bone, frontal bone and left parietal bone spilling the brain matter through the injury as well as the m ultiple abrasions present over the face and in face lend support to the version of assaults on the injured by iron lever and stones as referred to by PW-1, PW-2 and PW-3, in their evidence and, the eventual run over by the truck. On a totality of the evidence as above, we are convinced about the culpa bility of the accused appellants vis-à-vis the charges levelled against them. Th e evidence of PW-1, PW-2, PW-3 and PW-4, taken together, establish beyond doubt their involvement in the offence with which they have been charged in the instan t case resulting in the death of the brother of the informant. 23. This notwithstanding, one aspect of the incident cannot be overlooked. T he eye witnesses i.e. PW-1, PW-2 and PW-3 though have stated in categorical term s that the injured while lying on the ground was run over by the truck being dri ven by the accused appellant No.1, there is no evidence that the vehicle so driv en deliberately with the intention of killing him. The evidence on record is als o not clear as to the orientations of the injured as