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Section 145, Indian Evidence Act does not apply to prove “omissions” in witness statements during criminal trial




The Hon’ble Justice Joymalya Bagchi & The Hon’ble Justice Suvra Ghosh

CRA 709 of 2014
Md. Irfan & Ors.-vs-The State of West Bengal

With CRA 719 of 2014
Md. Akran @ Gabbar @ Gubbar & Ors.-vs-The State of West Bengal

With CRA 753 of 2014
Sk. Noor @ Md. Noor-vs-The State of West Bengal

With CRA 744 of 2014
Md. Aslam-vs-The State of West Bengal

For the Appellants in CRA 709 of 2014 & CRA 753 OF 2014 : Mr. Sekhar Kumar Basu, Sr. Adv., Mr. Abhishek Sinha, Adv.

For the Appellants in CRA 719 of 2014 : Mr. Sekhar Kumar Basu, Sr. Adv., Mr. Ranadeb Sengupta, Adv.Mr. Antarikhya Basu, Adv.

For the Appellants in CRA 744 of 2014 : Mr. Sekhar Kumar Basu, Sr. Adv. Mr. Sanjay Banerjee, Adv.

For the de facto complainant : Mr. Himanshu De, Sr. Adv., Mr. Mrityunjoy Chatterjee, Adv. Mr. Sanat Kumar Biswas, Adv.

For the State : Mr. Sudip Ghosh, Adv.,Mr. Apurba Kumar Datta, Adv.

Heard on : 15.07.2019, 05.08.2019, 21.11.2019, 02.01.2020, 15.01.2020, 22.01.2020

Judgment on : 04.02.2020

Joymalya Bagchi, J.:

Appeals are directed against the judgment and order dated 30.10.2014 and 31.10.2014 passed by learned Additional District and Sessions Judge, 1st Fast Track Court, Calcutta in Sessions Trial No.1(Dec) of 2008 arising out of Sessions Case No.45 of 2008 convicting the appellants under section 302/34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay fine of Rs.10,000/- in default to suffer rigorous imprisonment for one year more.

Prosecution case as alleged against the appellants is to the effect that on 01.02.2005 at around 11/11:30 a.m. the appellants armed with revolvers and bombs attacked the deceased, that is, Md. Akram who was inside the saloon of Ichuya Thakur, where he had gone to shave his beard. Buddha, Laddu, Aslam and Gabbar entered the saloon and shot him on his head and body. Thereafter they left after throwing bombs. Md. Akram was taken to Howrah General Hospital where he was declared dead. Md. Aslam (P.W. 7), brother of Md. Akram, lodged written complaint against Buddha, Aslam, Gabbar and Laddu and 5/6 other unknown miscreants at Golabari Police Station resulting in P.S. Case No.22/05 dated 01.02.2005 under section 302/34 of the Indian Penal Code, under section 25/27 of the Arms Act and 9B of the Indian Explosives Act. In conclusion of investigation, charge-sheet was filed against the appellants and the case was committed to the Court of Session for trial and disposal. Charges were framed against the appellants under section 302/34 of the Indian Penal Code. They pleaded not guilty and claimed to tried. In the course of trial, prosecution examined 21 witnesses and exhibited a number of documents.

In conclusion of trial, trial judge by judgment and order dated 30.10.2014 and 31.10.2014 convicted and sentenced the appellants, as aforesaid. Mr. Basu, Learned Senior Counsel appearing for the appellants argued that the names of appellants Sk. Nur @ Md. Noor, Md. Irfan, Md. Shahnawaz @ Md. Chand, Md. Alim @ Alimuddin and Md. Aftab are neither mentioned in the First Information Report nor in the inquest report prepared by P.W. 16 in the presence of the de facto complainant (P.W. 7) and P.W. 11. None of the so-called eye- witnesses P.W.s 2, 3, 4 and 7 would have seen the incident which occurred inside the saloon in view of the evidence of P.W. 1, photographer who stated that the interior of the saloon could not be seen from outside. P.W. 7 claimed that he had heard firing of shots when he was in front of the shop of Raja – the said shop is not shown in the sketch map prepared in the course of investigation. Hence it is unclear whether he could have seen the incident from the spot where he was standing. Evidence of other eye-witnesses, namely, P.W.s 2, 3 and 4 suffered from gross embellishments as they do not name the assailants of the deceased in their previous statements to police. On the other hand, the most natural witness to the incident Manoj Thakur, employee of Paresh Thakur @ Ichua, barber of the shop was not examined although P.W. 19 had interrogated him during investigation.

Non-examination of the said witness gives rise to an adverse inference with regard to truthfulness of the prosecution case. There is discrepancy with regard to place of occurrence. Two different sketch maps have been exhibited in the instant case. No remnants of bombs were seized from the place of occurrence.

Learned counsel appearing for the State argued that the evidence of the eye- witnesses P.W.s 2, 3, 4 and 7 clearly establishes the prosecution case beyond doubt. All the witnesses explained the circumstances in which they were present at the place of occurrence and had seen the incident. Incident occurred at the doorstep of the saloon and, therefore, was visible to the eye-witnesses. Minor contradictions in their evidence do not detract the inherent truthfulness of the prosecution case. He strongly canvassed that the procedure to contradict witnesses with regard to their previous statement as laid down in Tahsildar Singh and Anr. Vs. State of U.P.1, that is, by exhibiting the portions of their previous statements which are in contradiction to their deposition in Court, has not been followed. Omission in the earlier statements of the witnesses are minor and may be attributed to or remissness in investigation as laid down in Alamgir Vs. State (NCT, Delhi)2. He also submitted delayed examination of witnesses if otherwise explained does not affect the prosecution case. [see State of U.P. Vs. Satish]. Sketch maps exhibited in the instant case are substantially the same and deficiencies in investigation relating to non-seizure of bomb remnants from the place of occurrence would not affect the truthfulness of the prosecution case. He further submitted as all the appellants came in a body to the spot with arms and fired at the victim resulting in his death they shared common intention to murder the victim. He relied on Goutam Ghosh & Ors. Vs. State of West Bengal4, in support of his submission. Hence, the appeals are liable to be dismissed. Learned lawyer for the de facto complainant adopted the submission of the learned counsel for the appellants.

On an analysis of the evidence of record it appears P.W.s 2, 3, 4 and 7 are eye-witnesses. P.W. 7 is the de facto complainant in the present case.

P.W. 2, Md. Firdos deposed on 01.02.2005 at around 11:00 a.m. they were sitting in the shop of Dulara and were talking amongst themselves. Md. Akram went to shave his beard at shop of Ichua Thakur situated in front of the egg shop of Dulara. Suddenly they heard sound of firing and noticed Buddha, Laddu, Irfan, Aslam, Chand, Gabbar, Kadir, Alim and Aftab enter the salon of Ichua Thakur and fired with their fire arms. Akram sustained bullet injuries and fell down on the ground. Miscreants left after throwing bombs. Body of Akram was lying at the gate, partly inside the gate of the saloon and partly on the road adjoining it. They shifted the body of Akram in a rickshaw van then in a taxi belonging to P.W. 10. The doctor in the hospital declared him dead. P.W. 2 was extensively cross- examined with regard to his previous statement to investigating officer P.W. 20. It is claimed that he did not name the accused persons in his statement. He was also cross-examined with regard to his criminal antecedents. He could not identify Noor in court.

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P.W. 3, Md. Musa @ Dulara, has corroborated the evidence of P.W. 2. He deposed on the fateful day he was gossiping with P.W. 2 when Akram came to his shop. Akram proceeded to the saloon of Ichua Thakur to have a shave. Around 11:15 a.m. he heard sound of firing from the shop of Ichua Thakur and noticed the appellants had fired at Akram. Out of fear he fled away. Returning to the spot he noticed Akram has suffered gun shot injuries. Akram was shifted in a rickshaw van and thereafter in a taxi to the hospital. This witness was cross-examined with regard to his previous statement in court and it is claimed he did not state the name the accused persons to the police.

P.W. 4, Md. Manwar Hossain, is another eye-witness. He deposed on 01.02.2005 between 11:00 a.m. to 11:15 a.m. he was taking tea in the tea stall of Md. Mahaibul on the crossing of Pilkhana Third Bye lane. He heard a sound and noticed the appellant firing inside the saloon of Ichua Thakur. Irfan was carrying bomb. Miscreants threw the bomb while they ran away from the spot. He rushed to the spot and found that Akram was lying with his head outside the saloon and his body inside the saloon. He was also cross-examined with regard to his previous statement to police.

P.W. 7, Md. Aslam, is the de facto complainant and brother of the deceased. He deposed at the relevant time he was proceeding from his house to observe Namaz in the mosque. When he arrived at the Chowmatha near saloon of Ichua, he saw Laddu, Budhua, Gabbar, Aslam and 5/6 others. They were coming from the western side and they went inside the saloon room with fire arms and starting firing at Akram. They threw bomb when they were fleeing away towards Fakir Bagan. He reached the saloon and found Akram was lying with his head on the gate of the saloon and his body inside the saloon. Akram was removed to G.T. Road in a trolley van and thereafter to Howrah General Hospital in a taxi where doctor declared him dead. He went to Golabari Police Station and lodged written complaint (Ext. 7). He was cross-examined with regard to his criminal antecedents.

P.W. 6, Nazma Begum, is the wife of the deceased. She deposed that at around 8:00 a.m. after taking breakfast, her husband has gone to the saloon for a shave. She was informed about the incident by one Manwar that her husband had been shot dead. She is a post-occurrence witness. She was informed that Alim, Budhua, Aftab, Chand and Gabbar were involved in the incident.

P.W. 11, Md. Rustam, is the elder brother of the deceased. He deposed on 01.02.2005 at 11:00 a.m. he heard sound of bullets and bombs. He heard from people that Md. Akram had been shot. He reached the spot and found 8/10 people with arms and bombs were moving towards Fakir Bagan. Two of them had handkerchief on their face. He could identify Md. Islam @ Ladua, Alimuddin, Md. Aslam, Md. Irfan, Md. Ajam @ Md. Budhua, Md. Akram @ Gabbar, Md. Sahanawaz @ Chand. He found his brother lying in a pool of blood. His brother shifted to Howrah General Hospital where he was declared dead.

P.W. 5, Sk. Anwar, another post occurrence witness. He has a tailoring shop at Howrah, Pilkhana, 3rd Lane. He was in the tailoring shop at the time of the incident. Hearing the sound of shooting and bomb blast he came out from his shop and proceeded towards 3rd Lane. He found 8/10 persons proceeding with fire arms towards Fakir Bagan. He identified the said persons. In cross-examination, he could not state the description of the appellants and admitted that he had not attended T.I. parade.

P.W. 8, Afraj @ Laddu Khan, accompanied the deceased to the hospital. He heard about the incident from P.W.s 2 and 3.

P.W. 12, Ichua Thakur, is the owner of the saloon. He stated that he was not present in the saloon at the relevant point of time.

P.W. 13, Rajat Sarkar, is the scribe of the First Information Report.

P.W. 14, Dr. C.N. Pal, examined Md. Akram in the Emergency Department of the Howrah District Hospital. He was brought by Md. Aslam, P.W. 7. He declared him dead. He proved the document, Ext.11.

P.W. 18, Dr. Harshit Sarkar, held post-mortem over the deceased. He found

following injuries:-

“1. Gun shot wound present over the left arm. There were two wounds 1″x1″x3″ with passed bullet mark.
2. One gun shot would over the left anterior chest wall of wound of entry.
3. Three bullet marks over the left chest wall.
4. Two gun shots present in the skull box.

Brain tissue was lacerated. Cranial bone fractured. Two bullet passed with wound of exit (right side). Fracture of rib present. Right and left lungs were ruptured with bullet. One bullet found in the thorax cavity with shell caps. Peritoneum was ruptured. Blood was coming from the mouth pharynx and larynx. Spleen was ruptured. Kidney was also ruptured and bladder was empty.

Summary of the injury:

1.Bullet was surrounded by the gun powder.
2. Bullet was used by country made weapons like revolver.
3. Death was confirmed by severe bullet injuries.
4. All shots were closed contact shots.”

He opined the death was due to bullet injuries which are ante-mortem and homicidal in nature. He opined injury in the brain was sufficient to cause death in the ordinary course of manner. He proved post-mortem report (Ext.14).

P.W. 16, Nihar Kr. Modak held inquest over the dead body and proved the inquest report (Ext.12).

P.W.s 19, 20 and 21 are the investigating officers of the case. P.W. 19, Chandidas Karmakar, deposed on 1.2.2005 he was posted as S.I, of Police at Golabari P.S. He received telephonic information that some anti-social throwing bombs at Pilkhana 3rd Lane. He noted such fact in the general diary and proceeded to the spot. At 11:50 hours he arrived at 3rd lane and came to know that some miscreants shot Md. Akram in the saloon of Ichua Thakur. As a result Md. Akram suffered gun shot injuries and was moved to Howrah District Hospital. He went to Howrah District Hospital and came to know Md. Akram had been brought in a dead condition with gun shot injury. He sent the dead body to the police morgue for post-mortem examination. He collected inquest report, death certificate from the investigating officer of the U.D. case. He proved the general diary (Ext.15), the formal F.I.R. (Ext. 16). He prepared rough sketch map with index (Ext.17). He seized one used bullet head, one empty and used percussion cap, blood, hair cuttings from the place of occurrence under a seizure list. He examined all the witnesses. From the statement of the witnesses he came to know the identity of other accused persons, namely, Aftab, Chand, Sk. Noor, Md. Quader and Irfan. He collected post-mortem report. On receipt of order from superior he handed over the case diary to CID, West Bengal. He identified another sketch map (Ext.B). He claimed the subsequent sketch map was prepared by the next investigating officer.

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P.W. 20, Jitendra Nath Kairi, is the second investigating officer. He was attached to Detective Department, Howrah as Sub-Inspector of Police. After taking charge of investigation he visited the place of occurrence and prepared rough sketch map with index (Ext.B). He seized the taxi and the rickshaw van. He made requisition for FSL examination of blood samples.

P.W. 21, Avash Nandi, is the last investigating officer of the case. He concluded the investigation and filed charge-sheet.

From the evidence on record it appears that on 01.02.2005 around 11/11:15 a.m. when the victim had gone to the saloon of Ichua Thakur (P.W. 12) to shave his beard, 8/10 persons armed with fire arms and bombs shot at him resulting in his death. P.W. 7 brother of the deceased was proceeding to western side. When he arrived near the saloon of Ichua Thakur he found Ladua, Budhua, Gabbar, Aslam and 5/6 others were coming from western side and entered the saloon of Ichua Thakur. They were armed with revolvers and bombs. Inside the saloon they started firing. Thereafter, they fled away after throwing bombs. When he reached the saloon he found Md. Akram lying with his head at the gate of the saloon with bullet injuries. Md. Akram was shifted to hospital where he was declared dead. Immediately thereafter he went to Golabari Police Station and lodged First Information Report at 12:55 hours naming Budhua, Ladua, Gabbar, Aslam and 5/6 unknown as the miscreants. It is contended that P.W. 7 is not an eye-witness as the correct place from where he had seen the incident is not noted in the sketch map (Ext.17 and Ext.B) prepared during investigation. P.W. 7 has been extensively cross-examined on behalf of the defendants. He has withstood such cross-examination and reading his evidence as a whole, I do not find any infirmity or inconsistency in his deposition to come to a conclusion that he is an untruthful witness. Soon after the incident he lodged the First Information Report and has graphically described the incident therein. Other eye-witnesses, namely, P.W. 2, 3 and 4 have corroborated the version of P.W. 7 with regard to the manner in which the appellants had come being armed with fire arms and bombs and attacked the victim in saloon of Ichua Thakur. Relying on the deposition of P.W. 1, photographer, that the interior of the saloon could not be seen from the exterior. It is contended that none of the witnesses had seen the appellants firing the victim. All the witnesses have specified that they were near the saloon of Ichua Thakur when they saw the appellant enter the saloon with fire arms. They heard shots being fixed and body of the deceased was found lying at the gate of the saloon.

In the backdrop of the aforesaid facts, I have no doubt in my mind that the said witnesses had ample opportunity to see the miscreants enter the saloon and fire at the deceased resulting in gun shot injuries. Deceased was found lying at the gate of the saloon. These circumstances leave no doubt in my mind that the evidence of P.W.s 2, 3, 4 and 7 establishes the prosecution case beyond doubt. These witnesses have been cross-examined with regard to their criminal antecedents. However, none of the criminal cases registered against the said witnesses were related to the appellants. Hence, it cannot be said that the said witnesses had falsely implicated the appellants due to prior grudge or animosity. It has been contended that Manoj Thakur, employee of the saloon of Paresh Thakur @ Ichua who is the best witness has not been examined. His non-examination would draw an adverse inference against the prosecution case. As I am convinced with the truthfulness of the deposition of P.W.s 2, 3, 4 and 7 with regard to manner and circumstances in which Md. Akram suffered gun shot injuries, I am unwilling to draw such adverse inference due to non-examination of the barber in the saloon. His examination would certainly have bolstered the case but as ample evidence unfolding the prosecution case is forthcoming, his non-examination does not create an unbridgeable gap in the prosecution case. It has been strenuously argued that the involvement of appellants Sk. Noor, Md. Irfan, Md. Chand, Md. Alim, Md. Aftab were belatedly introduced in the course of trial. In this regard attention is drawn to the evidence of the investigating officers, P.W.s 19 and 20, with regard to the fact that the names of the said accused persons had not been taken by the eye-witnesses i.e. P.W.s 2, 3, 4 and 7 during investigation. On the other hand, learned counsel for the State submitted that the deposition of the eye- witnesses are substantially corroborative of their previous statements made to the police and minor variations therein cannot be treated as contradictions. What is contradiction between the deposition of a witness in Court and his previous statement under section 145 of the Evidence Act has been succinctly enunciated in Tahsildar Singh5. The Bench in the said report, inter alia, held as follows:-

“If the statement before the police-officer and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other.
The Bench illustrated the proposition as follows:-
Supra note 1 “To illustrate: A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C.”

With regard to mode and manner of proof of such contradiction the Court held:-

“His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer.”

In the present case no such procedure has been followed. No part of the previous statements which are alleged to be in ‘contradiction’ to the depositions of the witnesses in Court have been proved. However, one must bear in mind what has been canvassed before this Court are ‘omissions’ in the evidence of witnesses when compared to their previous statements to the police officer. Procedure laid down in section 145 of the Evidence Act does not envisage the mode and manner of proof of ‘omissions’ of vital facts. This was clarified in Tahsildar Singh6 as follows:-

“…if the witness is asked “did you say before the police- officer that you saw a gas light?” and he answers “yes”, and then the statement which does not contain such recital is put to him as contradiction, the procedure involves two fallacies: one is, it enables the accused to elicit by a process of cross- examination what the witness stated before the police-officer. If a police-officer did not make a record of a witness’s statement, his entire statement could be brought on record. This procedure, therefore, contravenes the express provision of section 162 of the Code. The second fallacy is that there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer and not between he had stated before the police officer and what he actually made before him.”

The Bench concluded as follows:-
Supra note 1 “Section 145 of the Evidence Act indicates the manner in which contradiction is brought out.”

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It does not apply to the proof of ‘omissions’ in the deposition of witnesses.

This is further enunciated in Laxman and Ors. Vs. The State of Maharashtra7, where the Apex Court reiterated section 145 of the Evidence Act does not apply to prove all material omissions. It held as follows:-

“10. So far as our law goes, we do not think that Section 145 of the Evidence Act, on the very reasoning of Tahsildar Singh’s case …, was intended to exclude from evidence what is relevant and admitted, and, therefore, a proved omission from having its due effect in the assessment of probabilities. Section 145, Evidence Act applies only to ‘contradictions’.”

As the appellants have canvassed ‘omissions’ in the evidence of witnesses in Court when compared with their previous statements to police, procedure under section 145 of the Evidence Act does not require to be complied with. However, whether such omissions were substantial and material so as to discredit the veracity of the witnesses has to be assessed in the backdrop of the totality of proved facts and circumstances must be adjudged as held in Laxman8:-

“11. It is not possible to lay down a general rule as to what effect a particular omission from a previous statement should have on the probative value of what was so omitted by a witness. The effect will depend upon the totality of proved facts and circumstances in which the omission might have taken place. It will often be determined by the importance of what was omitted.”

In order to do so, I have examined the evidence of the said witnesses as a whole. Names of Md. Akram @ Gabbar, Md. Azam @ Buddha, Md. Laddu @ Md. Islam and Md. Aslam have transpired in the First Information Report lodged by P.W. 7 within one hour of the incident. Hence, the possibility of their false (1974) 3 SCC 704 Supra note 7 implication at the belated stage is completely ruled out. However, in the F.I.R. as well as in the deposition of P.W. 7 it appears that the faces of the accused persons were covered. P.W. 7 failed to identify the other accused persons in Court. Prosecution case in the F.I.R. and the deposition of the de facto complainant (P.W.7) with regard to identity of other accused persons is, therefore, at variance with the evidence of other eye-witnesses P.W. 2, 3 and 4 who have named the said accused persons as members of the group who attacked the deceased. No doubt, F.I.R. can ordinarily be used to contradict or corroborate its maker. However, when the maker of the F.I.R. and other witnesses are at the same place and a vital fact, namely, covering of faces of some of the accused persons is reflected in the F.I.R. but a contrary version emerges from the deposition of other eye-witnesses, such variance cannot be attributed to the different recollective faculties of the witnesses and would affect the veracity of the prosecution case with regard to the statements of the accused persons. Reference in this regard may be made to Ram Kumar Pandey Vs. State of M.P.9. Furthermore, with regard to the identity of the said accused persons versions of the said witnesses in Court appear to be embellished when compared with their earlier statements before police.

In the light of the aforesaid discussion, although I am convinced of the guilt of the appellants, namely, Md. Akram @ Gabbar, Md. Azam @ Buddha, Md. Laddu @ Md. Islam and Md. Aslam and uphold the conviction and sentence imposed upon them, I am inclined to extend the benefit of doubt to the other appellants, namely, Sk. Noor @ Md. Noor, Md. Irfan, Md. Shahnawaz @ Md. Chand, Md. Alim @ Alimuddin, Md. Aftab.

The appeal is, thus, partly allowed.

(1975) 3 SCC 815 (para 8) Period of detention suffered by the appellants, namely, Md. Akram @ Gabbar, Md. Azam @ Buddha, Md. Laddu @ Md. Islam and Md. Aslam during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of 428 of the Code of Criminal Procedure.

Appellants, namely, Sk. Noor @ Md. Noor, Md. Irfan, Md. Shahnawaz @ Md. Chand, Md. Alim @ Alimuddin, Md. Aftab shall be released forthwith from custody upon execution of bond to the satisfaction of the trial court which shall continue for six months in terms of Section 437A of the Code of Criminal Procedure, if not wanted in any other cases.

Copy of the judgment along with L.C.R. be sent down to the trial court at once. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.

I agree.

(Suvra Ghosh, J.) (Joymalya Bagchi, J.)

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