Dismissed

Dubu Momin @ Dugu Momin & Ors. v. State of West Bengal

Calcutta HC3 Jan 2022CRA/415/2016

Case brief

AI extract

What is this about?

The High Court upheld the conviction and death sentence of appellants for murder (Parts 302/120B IPC) regarding a case where the defense contested the witness reliability and dying declaration, and the forensic report instead was found to corroborate the eye witness accounts of the assault.

What did the court decide?

Appeal dismissed; conviction and sentence upheld; bail bonds cancelled; surrender directed.

Dubu Momin @ Dugu Momin & Ors. Vs State of… — Murder and Culpable Homicide | Calcutta HC (2022)

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IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

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Present :

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The Hon’ble Justice Joymalya Bagchi

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And

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The Hon’ble Justice Bivas Pattanayak

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C.R.A. 415 of 2016 with

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CRAN 2 of 2017 (Old CRAN 2797 of 2017)

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Dubu Momin @ Dugu Momin & Ors.

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-Vs.-

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The State of West Bengal

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For the Appellant :	Ms. Shreyasee Biswas, Adv.
For the State :	Ms. Anasuya Sinha , Adv. Mr. Pinak Kumar Mitra, Adv.
Heard on :	03.12.2021 & 03.01.2022
Judgment on :	03.01.2022

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Joymalya Bagchi, J.:-

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The appellants have assailed the judgment and order dated 07/06/2016 and 08/06/2016 passed by the Learned Additional Sessions Judge, 2^nd Fast Track Court, Jangipur, Murshidabad in connection with Sessions Trial no. 2/February/12 arising out of Sessions Serial Case No. 12/12 convicting the appellants for commission of offence punishable under Section 302 read with Section

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120B of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each and in default to suffer further rigorous imprisonment for a term of one year more.

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Prosecution case against the appellants is to the effect that on the preceding day there was a scuffle between the deceased Giyasuddin and the 3^rd appellant Kamruddin. Over this issue, on 23.03.2008, all the appellants came in a body with arms searching for Giyasuddin at his residence. Unable to find him, they assaulted his son Rejabul. Then they left the house threatening to kill Giyasuddin. Finally, they accosted Giyasuddin on the Sankarpur pakka road near Sankarpur Idgah and assaulted him mercilessly. 1^st appellant, Dubu Momin assaulted Giyasuddin with a knife on the right chest and the 2^nd appellant, namely, Samtul Momin gave a blow with vojali on his back. 5^th Appellant, Seruddin Momin assaulted him with lathi, while 3^rd and 4^th appellant Kamiruddin Momin and Ramjani respectively exhorted them to kill Giyasuddin. As a result of his injuries, Giyasuddin died at the spot.

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PW 1 Motiur Momin, the elder son of Giyasuddin lodged written complaint resulting in the registration of Suti PS Case no. 83/08 dated 23.03.2008 under Sections 302/34/120B of the Indian Penal Code. In the course of investigation weapon of offence, namely, vojali and knife were recovered from Samtul and Dubu Momin respectively. In conclusion of investigation, charge sheet was filed against the appellants. Case was committed to the Court of Sessions and

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transferred to the trial court for trial and disposal. Charges were framed under Sections 302/120B/34 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried.

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In the course of trial, prosecution came with 17 witnesses and exhibited a number of documents. In conclusion of trial, the Trial Court by judgment, convicted and sentenced the appellants as aforesaid. Hence, the present appeal.

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Ms. Biswas, learned advocate appearing for the appellants submitted the informant PW 1, is not an eye witness. His presence is noted by other so-called eye witnesses, PWs 5, 7 and 11. Hence, FIR is a false and manufactured document. She argues evidence of other eye witnesses, PWs 5, 7, and 11 suffered from various embellishment and contradictions. PW 7, wife of the deceased had embellished her version in Court while PW 11 had criminal cases pending against him. She further argues dying declaration of the deceased is unreliable as the contents of the dying declaration had not been stated by PW 7 or in the FIR. There is dichotomy in the evidence of the ocular witnesses when compared with the medical evidence of the PM doctor, PW 13 who claimed that vojali and knife would cause puncture or stab injury. Seized weapons were not shown to PW-13 or sent for forensic examination. Hence, the appellants are entitled to an order of acquittal.

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On the other hand, Ms. Sinha, learned advocate for the State submits the prosecution case is squarely proved through the eye witnesses, PWs 1, 5, 7 and 11. PWs 3, 4 and 7 deposed that the deceased made a dying declaration implicating the appellants. Evidence

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of the ocular witnesses is supported by PM doctor, PW 13 who found injuries on the chest and shoulder of the deceased which were antemortem and homicidal in nature.

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I have analyzed the evidence on record. PWs 1, 5, 7 and 11 claim to be the eye witnesses.

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Out of them PWs 1 and 7 are the elder son and wife of the deceased respectively. PW 1 is also the first informant. He stated on the previous day, there was an altercation between his father Giyasuddin and Kamruddin. On the date of occurrence at 4.00 P.M. the appellants came to the house in search of his father and assaulted Rejabul, his younger brother. Thereafter, the appellants assaulted his father on the pakka road in front of Sankarpur Idgah. Dubu Momin gave blow on the right chest of his father with a knife, Samtul Momin gave a blow with vojali on the back and his father fell on the ground. Seruddin Momin hit his father with lathi. Ramjani and Kamiruddin Momin exhorted the other accuseds to murder Giyasuddin. He lodged FIR at Suti Police Station which was scribed by PW 10. He also was the witness to the seizure of the wearing apparels of his father.

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PW 7 is the wife of the deceased. She deposed on the previous day there was an altercation. The appellants entered her house at about 4.30 P.M. and searched for her husband. When they were unable to find her husband, they assaulted her son Rejabul. Thereafter, they left the house threatening to kill her husband. Out of concern, she followed them and saw them assaulting her husband at the place of occurrence. Dubu Momin gave knife blow, Samtul Momin assaulted with vojali,

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Seruddin Momin assaulted with lathi, Ramjani and Kamiruddin Momin exhorted the accuseds to commit murder. She protested and the appellants pushed her. She fell on the ground. She tied gamcha around the wound of her husband. Her husband stated a few words in presence of Samsuddin (PW 4) and Pintu. In cross-examination, she admitted she has not told the Investigating Officer with regard to the appellants visiting her house at 4.30 P.M. and assaulting her son.

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However, PW-9, Rajabul, son of the deceased corroborated her mother and stated that the appellants had visited their house in search of his father. Unable to find him, they assaulted him and left the house, threatening to kill his father. Hearing this, his mother ran after the accused persons. After sometime, he heard that the accused persons had murdered his father. He went to the place of occurrence and saw his brother (PW 1), mother (PW 7) along with others at the spot.

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Apart from the aforesaid relation witnesses, the incident had been seen by two independent witnesses, namely, PW-5, Osikul Sk., who is the owner of a tea stall and PW 11, a resident of Sankarpur. Both of them have corroborated and reiterated the manner of assault by Dubu, Samtul, Sheruddin on the victim and exhortation by the other appellants namely, Ramjani and Kamruddin to kill him.

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PW 5 is the owner of a tea stall which is situated opposite to Sankarpur Idgah. His tea stall is noted in the sketch map which was prepared by the Investigating Officer, PW 15. He is, therefore, the most natural witness to the incident which occurred on the pakka road in front of his tea stall opposite to the Idgah.

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PW 11 is a resident of Sankarpur. He was present at the place of occurrence and witnessed the assault on the deceased. It is argued PW 11 has criminal antecedents. Hence, his evidence ought to be discarded. I am wholly unconvinced by such argument. The antecedent of the witnesses neither improbabilises his presence at the place of occurrence nor does it disclose enmity against the appellant. On the contrary, upon scanning his cross-examination, I find that the son of this witness is a friend of the accused persons which renders him a highly unlikely candidate to be set up as a tutored witness against them.

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It is argued PW 1 was not present at the place of occurrence as his presence had not been noted by other eye witnesses. Even if such proposition is accepted, consistent version of the other witnesses namely, PWs 5, 7 and 11 establish the prosecution case beyond doubt. Their narration of the incident is corroborated by PM doctor who noted the following injuries on the deceased.

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“ I found one sharp cutting injury over 8^th inter-costal space anterior to anterior axillary line right side measuring 2” x 2”, another sharp cutting injury over back on lower and lateral margin of scapula left 3” x 1”, left lobe of lung was also injured, right lobe of lung was also injured."

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He opined death was due to shock and hemorrhage from above mentioned injuries which were ante-mortem and homicidal in nature. Culling out a line from his cross-examination that sharp pointed instruments like knife, sword, Bhojali cause puncture and stab injury, Ms. Biswas strenuously argued the ocular evidence is discredited by

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medical witness. I find it difficult to persuade myself to such conclusion. Eye witnesses consistently stated that the deceased was assaulted on the chest and back. Sharp injuries are found on the chest and the scapula of the deceased corroborating the manner of assault. Dubu has used a knife while Samtur used a vojali , Seruddin had assaulted with a lathi. Though knife and vojali have pointed ends, it is nobody’s case that such weapons do not have sharp cutting edges too. PW 13 had not stated that the injuries inflicted on the person could not have been caused by such weapons. He merely stated that such weapons can cause puncture or stab injuries. Hence, the possibility of sharp cutting injuries by use of such weapons is not wholly ruled out. When medical evidence does not wholly improbabilize ocular version of reliable witnesses, the Court would not be persuaded to extend the benefit of doubt to the appellants. On the other hand, it is a wholesome principle in appreciation of evidence that version of eye witnesses must be given more credence over hypothetical opinion of an expert. On a wholesome reading of the evidence of the medical expert, I am of the opinion the medical expert substantially corroborates the genesis of the prosecution case as narrated by eye witnesses instead of portraying a wholly incompatible proposition.

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With regard to the dying declaration of the deceased, I find that PW-7, wife of the deceased stated that her husband spoke a few words with her, Samsuddin (PW 4) and one Pintu. She is however silent with regard to the words uttered by the deceased. She also does not claim that the deceased made any dying declaration before PW 3, a post

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occurrence witness. Though PWs 3 and 4 claimed the victim made statement implicating the appellants, this vital fact is absent in the FIR. From the aforesaid evidence on record, I am inclined to hold although the deceased may have mumbled a few words, it is unclear whether he had implicated the appellants in the crime.

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Be that as it may, in the face of the consistent and corroborative eye witness version, as narrated by PWs 5, 7 and 11, clearly implicating the appellants in the crime, I am of the opinion the prosecution case is wholly proved on the basis of their version.

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Finally it is submitted that all the appellants did not assault the deceased and there is no evidence that they had conspired to murder the victim. Evidence of the relation witnesses, show that there was a scuffle between the deceased and Kamruddin on the previous day. Over this issue, on the next day the appellants armed with various weapons came in a body to the residence of the deceased and searched for him. When they were unable to find him, they assaulted his son, Rejabul and left the spot threatening they will kill Giyasuddin. PW 7, wife of the deceased, got alarmed at such exhortation and rushed behind them. She saw the incident of assault on the Pakka road near Sankarpur Idgah. Dubu assaulted the deceased with a knife on the right chest, while Samtul assaulted him with vojali on the back, Seruddin assaulted with lathi. Ramjani and Kamiruddin Momin exhorted the other accused persons to kill the victim. They also pushed away PW 7, when she tried to resist. Thereafter, the appellants fled from the spot.

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Conduct of the appellants before, during and after the incident clearly show that there was meeting of minds to murder the deceased. Prior to the incident, the appellants had come in a body armed with weapons searching for the victim at his residence. When he was not found there, they left threatening to murder him. Thereafter, they accosted the victim and while some of them assaulted him with deadly weapons, others exhorted to kill the victim. They even resisted his wife who tried to save the deceased. Thereafter, they fled the spot. Conspiracies are hatched in private and hardly one would find direct evidence to prove. Conduct of the conspirators and other incriminating circumstance provide tell tale circumstantial evidence to establish such a charge. In the present case the aforesaid circumstances clearly show that the appellants had prior meeting of minds to commit the murder and had also shared common intention to kill the deceased. Thus, the meeting of minds of the appellants to commit murder is clearly established and their active participation in murder pursuant to such conspiracy is also proved beyond doubt.

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Thus, in the light of the aforesaid discussion, conviction and sentence of the appellants are upheld.

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The appeal being CRA 415 of 2016 and the application being IA No. CRAN 2/2017 (Old CRAN 2797 of 2017) are, accordingly, dismissed .

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Bail bonds of the appellant nos. 3, 4 and 5 are cancelled. The appellants are directed to surrender forthwith and serve out the remainder of their sentence in accordance with law.

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In the event they fail to do so, trial court shall take appropriate steps to apprehend them and execute the sentence in accordance with law.

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Period of detention, if any, undergone by the appellants during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.

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Lower court records along with a copy of this judgment be sent

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down at once to the learned trial Court for necessary action.

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Photostat certified copy of this order, if applied for, be given to the

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parties on priority basis on compliance of all formalities.

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I agree.

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(Bivas Pattanayak, J.)

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(Joymalya Bagchi, J.)

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Saswata Bhattacharya Assistant Registrar (Court)

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Dubu Momin @ Dugu Momin & Ors. v. State of West Bengal

Case brief

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Dubu Momin @ Dugu Momin & Ors. v. State of West Bengal

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