Calcutta High Court (Appellete Side)
Iswar Tudu vs The State Of West Bengal on 13 May, 2016
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Aniruddha Bose
And
The Hon'ble Justice Sankar Acharyya
C.R.A. No. 593 of 2014
Iswar Tudu
Vs.
The State of West Bengal
Advocates for the Appellant: Mr. Tapan Dutta Gupta,
Mr. Debabrata Dasgupta
Ms. Nagima Begam
Mr. Bijoy Bag.
Advocates for the State: Mr. Subir Banerjee (APP)
Mr. Jayanta Banerjee.
Heard On: 17.08.2015, 14.09.2015,
30.09.2015, 27.04.2016,
03.05.2016 and 11.05.2016.
Judgement On: 13th May, 2016.
ANIRUDDHA BOSE, J.:
1. There was unnatural death of one Dilip Tudu (victim) on 16th December 2012, in a village by the name of Kalipur in Nalhati police station within the district of Birbhum. The cause of death, as per the post-mortem report was the effects of certain injuries recorded in the same report. The injuries, which we shall refer to in detail later in this judgment, were in the frontal and rear portion of his head. The autopsy surgeon opined in the post- mortem report that the injuries were ante mortem and homicidal in nature. In the written complaint made on 17th December 2012, by one Sonamoni Tudu, it was alleged that death of the victim was on account of assault by Iswar Tudu (the accused/appellant) by a bamboo lathi, as a result of which the victim fell 'flat' with serious injury. Said Sonamoni Tudu is the sister of the victim whereas the accused is her cousin. As per the written complaint, which has been marked 'exhibit - 5', local people had carried the victim to the Rampurhat hospital where he died after sometime. The First Information Report was registered on 17th December 2012 at about 12.25 hours and on that basis Nalhati P.S. case no. 287 of 2012 was started, from which this proceeding originates.
2. The F.I.R. maker Sonamoni Tudu has deposed in the trial as Prosecution Witness No.1. In her complaint she has indicated that she was busy in treatment related work and that is why there was delay in making the complaint. Inquest was made on the date of making of the complaint itself. From the evidence of the Investigating Officer, being the Prosecution Witness No. 9, it transpires that after getting charge of investigation, he had visited the place of occurence. He had examined the available witnesses there and arrested the accused/appellant.
The memo of arrest reveals that the accused/appellant was arrested on 17th December
itself at 14.05 hours from the same village in which the incident occurred. In course of investigation, a lathi (stick) made of bamboo of about 2½ feet in length and about 9 inches in width was seized. The seizure list (exhibit - 2) records that it was seized from the possession of the accused and the accused himself had produced the same. We find from exhibit - 2 that seizure was made at 14.15 hours. The seized bamboo stick had been made material exhibit in the trial, and the prosecution case is that this lathi was the weapon of assault. Two seizure witnesses (P.W. 2 and P.W. 3) as also the Investigation Officer have identified the bamboo stick, as being the one which was seized.
3. On completion of investigation chargesheet was submitted, and the case was committed for trial. Charge was framed under Section 304 of the Indian Penal Code, 1860 and upon the accused pleading not guilty, he was tried by the Additional Sessions Judge, Birbhum at Rampurhat. The case was registered as Sessions Trial No. 25/May/2013 corresponding to Session Case No. 59 of 2013. Altogether nine witnesses were examined by the prosecution in course of trial. The accused did not examine any witness in his defence. In response to his examination under Section 313 of the Code of Criminal Procedure, 1973, his stand was that of denial. P.W. 1, P.W. 2 (Ranjit Tudu), P.W. 3 (Nibir Soren), P.W. 4 (Sumir Soren) and P.W.7 (Babu Tudu) deposed for the prosecution as witnesses of fact. The autopsy surgeon, Subash Poddar was examined as P.W. 5, who proved the post-mortem report. He, however, was not shown the aforesaid material exhibit. In course of his depositon, he stated that he had collected the "stomach content, portion of liver, one kidney, sample of blood in separate file, few hair, few nails." These articles were preserved by him separately in glass jar and were handed over to the attending constable. He has stated in his examination-in-chief that he had collected those articles for sending the same for F.S.L.(Forensic Science Laboratory) examination report, but he did not receive any opinion from F.S.L. P.W. 8, Santosh Maharaj was the scribe of the written complaint (exhibit - 5), which was proved by him. P.W. 6 (Krittibas Ghosh) and P.W. 9 (Pradip Ghosh) were police witnesses. P.W. 6 had conducted inquest and a carbon processed copy of the inquest report has been marked exhibit - 1/2. P.W. 9 was the Investigating Officer. In their examination-in- chief, P.W. 1, P.W. 3 and P.W. 7 deposed as eye- witnesses of the actual assault, whereas P.W. 2 deposed as post-occurence witness. The deposition of P.W. 4 was in the nature of hearsay. In order to establish the appellant as the assailant, prosecution also relied on evidence of P.W.2. In his examination-in-chief, the P.W.2 stated that he had reached the house of Dilip Tudu on 16th December 2012 after returning from the field, and saw many other persons proceeding at the same direction. On reaching there, he found the victim bleeding, and in restless condition. On being asked, the victim told him that the accused Iswar Tudu had assaulted him. In addition to these depositions, in the inquest report the P.W.6 has recorded that it was revealed from Utpal Tudu, nephew of the deceased that in the afternoon of 16th December, the victim was engaged in quarrel and action with the accused as a result of which he died at the hospital. Utpal Tudu however was not examined by the prosecution.
4. In the judgment delivered on 27th August 2014, the Trial Court found that none of prosecution witnesses had actually seen the act of assault which is meant to have been the cause of death of the victim. The Trial Court disbelieved that part of the evidence of the P.W.1, 3 and 7 in which they had deposed that they were direct witnesses of the offending act, having seen the actual assault. Suggestion was given to the P.W. 5 in course of trial that laceration injury (which was reflected in the post-mortem report) could be caused by falling on hard stone or on contact with a hard surface. So far as laceration injury is concerned, the P.W. 5 had accepted in his cross-examination of such possibility, but not with specific reference to the injuries of the deceased victim. The prosecution case, which emanated primarily from the depositions of the witnesses of fact was that there was heated exchange of words between the accused and the deceased, in consequence of which the accused had assaulted the victim with the bamboo stick and the injury caused by such strike resulted in death of the victim. The Trial Court however disbelieved that the victim had told the P.W. 2 that it was the accused who had assaulted him. To come to this finding, the First Court considered the deposition of the Investigating Officer, in which the latter stated that Ranjit Tudu (P.W.2) did not tell him that he heard about the incident from Dilip Tudu (the victim). That part of the evidence of P.W.2 appeared to the Trial Court as afterthought.
5. The Trial Court however believed the part of evidence of the P.W. 1 in which she stated that there was "quarrel" between the accused and the deceased, and later she saw the deceased victim in injured condition crying in pain. The P.W. 2, P.W. 3 and P.W. 7 also saw the victim in restless condition with bleeding injuries. The missing link in the chain of events was evidence of actual assault by the accused. The Trial Court found that the accused and the victim being close relatives of the P.W. 1, and the respective houses of the accused and the P.W.1 being side by side, it was possible for her to identify their voices though she might not have had seen them at that point of time. The Trial Court accepted the part of evidence of P.W. 2 in which he stated that after he reached the place of occurence from the field he found the victim in restless condition. The evidence of P.W. 3 which was believed by the Trial Court was also that he had reached the place of occurence after the incidence and saw Dilip Tudu restless with bleeding injuries. Same nature of evidence of P.W.7 was accepted by the Trial Court.
6. So far as the assaulting weapon is concerned, on behalf of the appellant certain contradictions among the witnesses in describing the bamboo stick have been sought to be highlighted. But these contradictions are insignificant as the weapon in question fitted the description appearing in the seizure list. As regards seizure of the bamboo stick, the finding of the Trial Court was that it was recovered in course of investigation. The P.W. 7 had also deposed that on hearing the hue and cry, he had reached the place of occurence and Iswar Tudu had a lathi (hoorko) with him which was bloodstained. But his statement that a lathi with bloodstain was seized was disbelieved by the Trial Court.
7. On behalf of the appellant, two other points have been urged before us, on the basis of which invalidation of the judgement of conviction has been prayed for. It has been argued on behalf of the appellant that prosecution case ought to fail as charge was not properly framed. Time and place of charge was not spelt out to the accused by the learned First Court at the time of framing of charge and in this regard a decision of a Coordinate Bench of this Court in the case of Rebati Baidya & Ors. Vs. The State of West Bengal reported in [(2014)1 C CrLR (Cal) 171] was cited. But so far as the case before us is concerned, we find that in course of examination of the witnesses as also examination of the accused under Section 313 of the 1973 Code, time and place of occurence of the incident have come out and the accused had full notice thereof. As such, we do not find any prejudice having been caused to the accused for this flaw in framing of charge, and no failure of justice has been occasioned because of this omission. Having regard to the provisions of Section 464 of the 1973 Code, we do not think this was a fatal flaw in the prosecution case.
8. In the case giving rise to this appeal, there is no direct evidence of the accused striking the deceased/victim with the seized bamboo stick. Moreover, none of the witnesses of facts barring P.W. 7 claims to have seen Iswar Tudu with a lathi at the place of occurrence after injury was caused to the victim. At the time P.W. 1 claims to have seen the deceased victim weeping in pain, she has not stated that the accused was there with a lathi. Her deposition of having seen the act of assault has been disbelieved by the First Court.
9. In the post-mortem report the following injuries of the victim have been recorded, which were reiterated by the autopsy surgeon (P.W. 5) in course of his deposition:-
"1. One abrasion 2" x 1" places over middle of chin
2. swelling and bruise discolouration of both lids of left eye. On dissection extravasation of blood 1½" x 1" each
3. one lacerated wound 1/2" X ½" x skin deep, placed over lower lip with looseness of left two incisor teeth
4. one oval shaped 3" x 2" haematoma, placed over occipital region in oblique direction.
5. Four vertical lacerated wound, each measuring more or less 1" long x 1/4" wide and skin deep place over middle of forehead with irregular margin and extravasation of blood in soft tissue.
6. One swelling measuring 5" x 3" x bone deep placed over left tempero mandibular area of face in vertical direction, just in front of left ear. On dissection extravasation of blood in and around.
7. Bleeding from left ear with rupture of eymphanic membrane with a small lacerated wound over pinna.
8. Epidural and sub-dural inter cranial haemorrhage. No other injuries have been detected and all the injuries are fresh and non-scabbed."
No question was put to the P.W. 5 seeking his opinion as to how these injuries occurred. The seized bamboo stick was also not shown to him to elicit his opinion as to whether injuries of this nature could be caused by strikes from that weapon. There is no medical report on evidence, and there is also no evidence that any of the individuals accompanying the victim had named the accused as assailant before the attending doctor. Though this deficiency is not a fatal flaw in the prosecution case, this can be a factor in making assessment of weight of prosecution evidence. In any event, there is no material before us from which we can conclude that the seized "lathi" was used to assault the victim.
10. We also do not find any evidence showing presence of Iswar Tudu (the accused) at the place of occurence prior to, or at the time of occurrence of the incident which injured the victim and eventually caused his death. The only evidence is that of P.W. 1 to the effect that the deceased victim and the accused had quarrel with each other. The Trial Judge came to the conclusion of presence of the accused at the place of occurence on the basis that the P.W. 1 could have recognized the voice of the accused at the time of quarrel. This recognition of voice was treated as starting point of the chain of events through which prosecution has sought to establish its case, and the next point which was established by evidence was that the injured victim was writhing in pain. P.w.2, 3 and 7 have testified on having seen the victim, injured and bleeding. Thereafter, there is sufficient evidence to establish that the victim was taken to hospital. There is no major contradiction in the post-mortem report. The First Court applied the principle incorporated in Section 106 of the Evidence Act, 1872 to hold the accused responsible for the assault. The Court held that since in between the time of quarrel and the time when the victim was writhing in pain with bleeding injuries, presence of no other person could be found, and there was no evidence of any injury suffered from fall on stone, the accused was duty bound to explain how the victim sustained injury.
11. The deposition of the P.W.1, however, does not clearly establish that there was quarrel at the time or immediately before occurence of the incident. Such quarrel has been explained in one sentence in her deposition - "My elder brother and accused Iswar Tudu had a quarrel with each other". Though there is no suggestion to the contrary to the P.W.1, her deposition merely establishes that there was a quarrel between the victim and the accused. There is no indication around what time such quarrel took place. On this slender piece of evidence, in our opinion it would be improper to conclude that such quarrel took place immediately before the victim sustained injury, and on that basis come to an inference that the accused was present at the place of occurrence so as to shift the onus on him to explain injury of the victim. Moreover, excepting P.W.7, none of the post-occurrence witnesses (being P.W.s 1,2 and 3) have stated that they could locate the accused at the place of occurrence when they reached there. Only P.W.7 has stated that he saw the accused with a bloodstained lathi when he reached the place of occurrence. But his claim of being an eyewitness has been disbelieved by the First Court. His evidence of having seen the accused at the place of occurrence does not inspire confidence of this Court and we do not believe this part of his evidence, particularly since two other post-occurrence witnesses (P.W.2 and P.W.3) have not stated that they had seen the accused at that location. The P.W.7, in his cross-examination has stated that when he reached the place of occurrence, Ranjit Tudu (P.W. 2) was there, but P.W. 2 has not stated that he saw the accused at the place of occurrence.
12. There are other inconsistencies in the prosecution case as well. The place of occurence has been identified by the Investigating Officer as house yard of the deceased victim in the sketch map and the index thereof, being Exhibits "7" and "7/1". The P.W. 1 has stated that the assault took place while the deceased victim was washing his hand and face near her house. In cross-examination, she has stated that there is a pond behind their house and Dilip (the victim) was washing his hand and face. If her deposition is to be believed, then the place of occurrence would have been next to the pond near the house of P.W. 1. There is no reference to any pond in the sketch map or the index prepared by the I.O. while identifying the place of occurrence. In the sketch map, the place of occurrence has been identified to be middle of the house yard.
13. In our opinion there is no clear evidence that quarrel between the accused and the victim was actually heard by P.W. 1, and we do not think the Trial Court had rightly arrived at a finding that presence of the accused could be established from the deposition of the P.W. 1 that she heard his voice before the occurrence of the incident. If this finding is found to be incorrect, then there remains no evidence to link the accused with the act of assault except his presence at the place of occurence. On that count also, we have already rejected the evidence of P.W.7 on having seen the accused at the place of occurrence with the bamboo stick. P.W. 2 has deposed that the deceased had told him that Iswar Tudu had assaulted him. But P.W. 1 in her cross-examination stated that her elder brother, referring to the deceased, had failed to speak anything when she was crying in pain. P.W.7 in his cross-examination has also stated that the victim sustained severe injury on his person and as such he failed to state how he sustained injury. This is a major contradiction. The First Court has rightly disbelieved this piece of evidence. In this case, three witnesses, who came as eye-witnesses, were disbelieved in respect of their depositions on that part of evidence. The Trial Court, however, sought to link the assault with the accused applying the principle of special knowledge as incorporated in Section 106 of the Evidence Act. But we have not accepted the evidence on starting point of the link, that is recognition of voices of the deceased and the accused by the P.W. 1. As such, we cannot impose on the accused the duty of explaining what had happened in between the alleged quarrel and subsequent fatal injury of the victim. The prosecution has not been able to establish complicity of the accused in commission of the offence with he was charged with on the basis of any other evidence. On the basis of the evidence available in our opinion the guilt of the accused has not been proved beyond reasonable doubt. The prosecution has failed to do so.
14. In such circumstances, we reject the finding of the Trial Court and set aside the judgment under appeal. The order of sentence is also set aside. The appellant is acquitted of the charge under Section 304 of the Indian Penal Code. The appeal is allowed.
15. We have been informed by the learned counsel for the parties that the appellant has already been granted bail by a Coordinate Bench upon suspension of sentence. His bail bond shall stand discharged.
16. The Lower Court Records be sent down forthwith along with a copy of this judgment.
17. Urgent Photostat certified copy of this judgement be given to the parties expeditiously, if applied for.
I agree (Sankar Acharyya, J.) (Aniruddha Bose, J.)