Jitendra Nath Chaudhuri, J.
1. These two appeals being Crl. App. No. 421 of 1979, Gofur Sk. v. State and Crl. App. No. 495 of 1979.Panchanan Kahar alias Pacha Kahar v. State were heard together as they arose out of orders of conviction under Section 396 of the Penal Code and sentences of life imprisonment passed in Sessions Trial No. 2 of July. 1979 by the learned Additional Sessions Judge, Murshidabad.
2. Originally in that joint trial two other accused namely. Sohorab Sk. and Israfil Sk. were also charged under Section 396 of the Penal Code and one Dhiren. Raibansi and one Ainal Haque were charged each under Section 412 of the penal Code for possession of articles arising out of the dacoity. Excepting the two present appellants all others have been acquitted of the respective charges levelled against thorn.
3. The charge against each of the present appellants reads as follows:
That you, on or about the 25th day of June. 1974 at village Kodla under P.S. Berhampore along with 20/22 persons committed dacoity at the house of Sudhir Chandra Mondal and that in the commission of such dacoity murder of Ananta Mondal was committed by one of your members and you thereby committed an offence of dacoity with murder punishable under Section 396 of the Penal Code and within the cognizance of the Court of Session.
4. The prosecution called 20 witnesses. The defence did not call any witness. For the purpose of the present appeals P. W. 1 Sudhir Chandra Mondal and p. W. 3 Ashima Mondal are the two eye-witnesses who deposed and identified the two accused. P. W. 1 identifying the appellant Gofur Sk. and P. W. 3 identifying Panchanan alias pacha respectively.
5. P. W. 1 Sudhir Chandra Mondal lodged the F. I. R. The incident is said to have occurred round about midnight of 25/26 June. 1974 in his house. The F. I. R. was lodged at 5-30 hours in the morning of 26-6-74 at the Police Station. It is the evidence of P. W. 1 that round about midnight there was an armed dacoity in his house and he was beaten up. The dacoits were carrying torch lights and were armed with Jhabas and Tangis. in his view 20/25 dacoits raided the house, some were keeping guard outside and the dacoits took away cash, gold, utensils, clothes etc. The dacoity according to him continued for about an hour. In the light of the torches which the dacoits were focussing he could mark the features of some of the dacoits. In Court. he identified the appellant Gofur Sk. and one Sohorab Sk, the acquitted accused as being among the dacoits in his room. According to his evidence the appellant Gofur Sk. was breaking open the wooden Sinduk and the acquitted accused Sohorab Sk. was moving about in the room where the witness was beaten up. It is his evidence that these dacoits were all unknown persons. The F. I. R. lodged by him was also lodged against unknown persons.
6. In cross-examination the defence suggestion that he knew Gofur Sk from before the incident was denied by him. Similarly he denied the suggestion that the acquitted accused Sohorab was known to him from before by name.
7. P. W. 3 Ashima Mondal deposes that P. W. 1 is the husband of her mother's sister and that she was in his house on the relevant night sleeping in the same room with P. W. 2 Pratima Mondal and Sarama Mondal. She describes how on that night the dacoits broke open the door and entered with torch lights etc. They were focussing the beam of their torches in all directions and broke open the boxes. She identifies in Court the appellant panchanan alias Pacha Kahar as being one of the dacoits in that incident. According to her she noticed him at the time of the dacoity. He was standing in the verandah and was focussing the torch by calling other dacoits and- arranging for leaving the house.
8. In cross-examination she frankly admits that some of the dacoits had covered their faces but denies the suggestion that she could not mark the features of any dacoits. It is her evidence that though it was a dark night there was sufficient light as a result of the torchlights being used by the dacoits.
9. P. W. 2 Protima Mondal is the daughter of P. W. 1. She also deposes as to the nature of the armed dacoity and speaks of the torches being used at the time by the dacoits. She corroborates P. W. 3 Ashima that she. Ashima and Sarama were all sleeping' in the same room. She does not identify anybody.
10. P.W. 5. Lalu Mondal is the brother of P. W. 3 Ashima. He was in the house of P. W. 1 at the time of the incident and deposes as to the dacoity on that night but he does not identify anybody, These were the inmates of the house who deposed in Court.
11. P. W. 4 Kusadhari Mondal is a co-villager of village Kodla, He deposes that there was a dacoity at midnight in the house of P. W. 1. He further speaks of one Ananta Mondal having died being attacked with bombs thrownby the dacoits. He. however, is not an eye-witness to the dacoity on the house of P. W. 1 nor does he appear to be an eye-witness to the attack on Ananta Mondal. P. W. 1 also speaks of Ananta Mondal being killed as a result of explosion of bombs by the dacoits but he obviously is not an eyewitness to the same and in fact deposes that he came to know about the same, but he does not say from whom.
12. Sarama was the daughter of P. W. 1. She had died before the Sessions Trial.
13. P. W. 9 Gouranga Mondal speaks of the said dacoity in the house of P. W. 1 and deposes that he was injured by the splinters of a bomb which the dacoits exploded and that he was an inmate of a hospital for 10 days. He further deposes that splinters of bombs were found in front of his house.
14. P. Ws. 6. 7, 8 were tendered on behalf of the prosecution but nothing transpires from their evidence.
15. P. Ws. 10. 11. 12. 13 and 14 are seizure witnesses not really relevant for the purposes of the present two appeals.
16. P. W. 15 was tendered on behalf of the prosecution but nothing transpires from his evidence.
17. P. W. 16 is the Constable who identified the dead body of Ananta Mondal before the Doctor conducting the post-mortem examination, Dr. B.C. Dutta.
18. P. W. 17. Charu Chandra Sarkar is a co-villager who deposes that he went to P. W. l's house Just after the dacoity and found the goods in his house lying scattered and found P. W. 1 weeping. He is a witness to the seizure by the police of bloodstained earth stones, and rope in two seizure memos which were prepared in his presence and signed by him. being exhibits 3 and 4.
19. P. W. 18 Nirmal Kumar Das is the Investigating Officer of this case. On 26-6-1974 he was attached to Berhampore P. S. as a S. I. He proves the handwriting of S.I.K.N. Adhikary of the same Police Station. S.I.K.N. Adhikary drew up the formal F.I.R. exhibit 5, on 26-6-1974. The F.I.R. lodged by P. W. 1 gave rise to case No. 53 of that date of that Police Station.
20. He deposes that on going to the house of P. W. 1 he found things lying scattered and boxes lying broken open, He sent P. W. 1 to the hospital. He drew up various seizure lists of the seizure of articles and the same have been exhibited in this case. He deposes that he found Gouranga Mondal (P. W. 9) in an injured condition and sent him for treatment. He held the Inquest on the dead body of Ananta Mondal at Kodla and sent the dead body for postmortem examination through P. W. 16, the constable. He received the post-mortem report preparedby Dr. B. C. Dutta and it appears that the learned Judge marked the said post-mortem report as exhibit 8 after noting that formal proof had been waived. Dr. B.C. Dutta did not depose in the case nor was any explanation at all offered as to why he was not called as a witness by the prosecution. We shall deal with the question of the admissibility of Exhibit 8 presently.
21. P. W. 19 Ashok Kumar Ghosh took over charge of the case from P. W. 18 and after going through the Case Diary and after consulting his superiors he submitted a charge-sheet in this case on 13-3-1976 against six accused including the appellant Panchanan. On 31-1-1978 he submitted a supplementary charge-sheet against the appellant Gofur Sk.
22. In cross-examination he admitted that the first charge-sheet was submitted after thorough probe but in the first charge-sheet he did not send up the appellant Gofur Sk. for trial through mistake. No evidence was led to show how he came to commit this mistake. He denied the suggestion that for want of sufficient materials Gofur Sk. was not initially sent up.
23. P. W. 20 is the learned Magistrate who conducted the test identification parade in connection with this case, We find from his deposition that on 24-7-1974 P. W. 1 Sudhir Chandra Mondal identified the suspect Gofur Sk who is an appellant before us.
24. In the other test identification parade held on 14-8-1974 P. W. 3 Ashima Mondal identified the suspect Pacha Kahar the appellant before us. In the same parade P. W. 1 identified the suspect Sohrab Seikh (acquitted). It is surprising to note that P. W. 1 failed to identify the same suspect Sohrab when he was placed in the test identification parade on 24-7-1974. The result, therefore, is that p. W. 1 having failed to identify the acquitted accused Sohrab in the T. I. parade held on 24-7-1974 succeeded in identifying him in the parade held on 14-8-1974.
25. The defence case as can be gathered from the cross-examination of the witnesses and from the statement made by the two appellants under Section 313. Cr. P. C. is a denial of their presence at the scene of occurrence. It is further their case that they were known persons. Apart from this no specific enmity or grudge has been alleged in cross-examination on behalf of the appellants or by them in their examination under Section 313. Cr. P. C, against any of the witnesses.
26. The conviction of the appellant Gofur Sk. depends on the sole testimony of p. W. 1 Sudhir Chandra Mondal. Although the evidence of dacoity that took place in the house of P. W. 1 on the night in question is overwhelming. no one else apart from P. W. 1 has purported to identify the appellant Gofur Sk. as being one of the dacoits, Indeed the fact that there was a dacoity on that night in the house of P. W. 1 has really not been challenged on behalf of the defence. But the defence case is one of false implication of the accused concerned in the occurrence. The fact that P. W. 1 having failed to ideintify the acquitted accused Sohrab Sk. in the T. I. parade held on 24-.7-74 still identified the same person in the subsequent T. I. parade held on 14-8-1974 makes it very difficult for us to place that amount of reliance on this witness which is imperative if the Court has to convict solely on the uncorroborated testimony of a lone witness. The aforesaid conduct of p. W. 1 in the two test identification parades referred to before seems to indicate that even if one does not go to the extent of saying that this witness is pliable, yet one can hardly escape the conclusion that the witness is on the face of it is unreliable. We feel after considering the evidence and the materials before us and the submissions, that it would be unsafe to convict the appellant Gofur Sk. on the uncorroborated testimony as to identification available only from P. W. 1.
27. We have already noticed in our judgment the peculiar feature that P.W. 19 who took over charge of this case from the Investigating Officer (P. W. 18) even after going through the case diary failed to submit the charge-sheet against the appellant Gofur Sk. on 13-3-1976 but on 31-1-1978 filed a supplementary charge-sheet against him. Even assuming that this may be held to be a mistake on his part arising from the fact that he took over charge from the Officer who was investigating this case viz. P. W. 18. still the infirmity in the evidence of p. W. 1 which we have already noted makes it, we feel, incumbent on our part to give the benefit of doubt to the appellant Gofur Sk.
28. In this case without calling the Doctor who conducted the post-mortem examination and without any explanation as to why he was not called, the post-mortem report of the said Doctor viz. Dr. B.C. Dutta has been marked as ext. 8 on behalf of the prosecution. The learned Judge in noting that formal proof had been waived was presumably referring to the provisions pf Section 294 of Cr. P. C. 1973.
29. Normally the post-mortem report is used by the Doctor who conducted the post-mortem examination for the purpose of refreshing his memory as permitted by law while giving substantive evidence in Court. No evidence has been led in this case to show that the post-mortem report was being tendered in evidence under any of the relevant provisions of Chap. II of the Evidence Act, In our view the learned Judge has erred in law in treating the post-mortem report as substantive evidence in this case without any foundation having been laid for the applicability of any of the relevant provisions of Chapter II of the Evidence Act
30. As a result we have no evidence before us as to the nature of the injuries appearing on the body of the deceased Ananta Mondal apart from the verbal testimony of the two witnesses referred to before, that Ananta Mondal had died as a result of bombs thrown by the dacoits. As has been already noted none of those two witnesses were eye-witnesses to the assault on Ananta Mondal.
31. In our considered view the evidence of P. W. 3 Ashima Mondal can be accepted without any hesitation as against the appellant Panchanan. Her presence in the house of P. W. 1 has been amply corroborated and her evidence does not suffer from any infirmity. It is our view that she has given very frank evidence and had no hesitation in admitting that it was a dark night and that some of the dacoits covered their faces. Her evidence that there was ample light in the glow of the torches which were being used by the dacoits, is certainly credible because such a dacoity carried on for the length of time as appears in evidence could not have been carried on in the dark.
32. In conclusion we accordingly find that the prosecution has failed to establish beyond all reasonable doubt the presence of the appellant Gofur Sk. in the house of p. W. 1 in the relevant incident. The learned trial Judge totally failed to notice the infirmity in the evidence of p, w. 1 which has already been noted by us. In the result we set aside the conviction of the appellant Gofur Sk. under Section 396 of the Penal Code and the sentence of life imprisonment passed on him by the learned trial court and acquit him of the same. He should be released forthwith.
33. So far as the appellant Panchanan alias Pacha Kahar is concerned, we set aside his conviction under Section 396 of the Penal Code and the sentence of life imprisonment passed under the said Section on him, We are of the considered view that the prosecution has established beyond all reasonable doubt the lesser offence under Section 395 of the Penal Code as against the appellant Panchanan. We accordingly convict the appellant Panchanan of the offence punishable under Section 395 of the Penal Code. Even though his conviction is no longer under Section 396 of the Penal Code, keeping in mind the time of the night when the dacoity was committed, the nature of the weapons used in the said dacoity which included the throwing of bombs during the commission of the same, in which admittedly P. W. 9 Gouranga Mondal was injured and in fact was in hospital for 10 days, we sentence the appellant Panchanan to imprisonment for life under Section 395. of the Penal Code.
34. The two appeals are disposed of accordingly.
B.C. Chakrabarti, J.
35. I agree.