Calcutta High Court (Appellete Side)
Nirapada Dhara & Ors vs State Of West Bengal on 3 May, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No.475 of 2010
Nirapada Dhara & Ors.
Versus
State of West Bengal
For the appellants : Mr. Bikash Ranjan Bhattacharya,
Senior Advocate,
Mr. Uday Sankar Chattopadhyay,
Mr. Suman Sankar Chattopadhyay,
Ms. Priyanka Dutta,
Ms. Paulomi Banerjee
For the State : Mr. Manjit Singh,
Ld. Public Prosecutor,
Mr. Ranabir Roy Chowdhury
Heard on : 08/09/2016, 09/09/2016, 24/11/2016, 16/03/2017, 17/03/2017, 23/03/2017,
28/03/2017 & 29/03/2017
Judgment on: 03/05/2017
Debasish Kar Gupta , J. :
This appeal is directed against a judgment and order of conviction passed by the Learned Judge, Special Court (E.C. Act) - cum Additional Session Judge, Hooghly, in Sessions Trial No. 56 of 2002, arising out of Sessions Case No. 138 of 2002, on July 26, 2010, convicting the appellants for commission of offence punishable under Section 304 Part-I read with Section 34 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentence dated July 27, 2010 sentencing each one of them to suffer rigorous imprisonment for life with fine of Rs.5000/- each and in default of payment of fine amount to suffer rigorous imprisonment for further period of six months each as also convicting each of them for commission of offence under Section 342 read with Section 34 I.P.C. sentencing each of them to suffer rigorous imprisonment for one year with fine of Rs.1000/- each and in default of payment of fine amount each of them to suffer rigorous imprisonment for further period of one month each. Both the sentences were directed to run concurrently.
The backdrop of the case in a nutshell is as under:-
A written complaint was received in the Haripal Police Station from one Sri Bhadreswar Dhonk (PW 1) on October 18, 2000, at 12.05 hours to the effect that on October 15, 2000, at about 22.00 hours appellant Nirapada Dhara came to his residence and took his fourth son Sukumar Dhonk (since deceased) to Maliya Miloni Natya Teertha Club hauling him from sleep. The deceased was inhumanly assaulted by the appellants with lathi, rod and electrocution on the alleged ground of theft.
Subsequently, the PW 1 came to know from one Gadadhar Mukherjee, Sub Inspector of Police, attached to Haripal Police Station (PW
12) that his aforesaid son had been removed to Chinsurah Hospital, Hooghly at M.S.I. Ward in a critical condition. According to the above written complaint the appellants took the leading part in making the aforesaid attempt to kill his aforesaid son instigating 100/150 persons in a state of intoxication. After receiving the information from some of the persons an Officer of Haripal Police Station reached the place of occurrence with his team and admitted the deceased to hospital in unconscious condition.
Formal FIR bearing Haripal P.S. Case No.113 dated October 18, 2000, was registered in the above police station at 12.05 hours against the appellants for commission of offence punishable under sections 342/323/325/34 IPC after incorporating an entry in the General Diary bearing No.704 on the above date. It was forwarded to the Court of learned Sub Divisional Judicial Magistrate concerned on October 26, 2000.
According to the material on record, the aforesaid Sukumar Dhonk was initially brought to the Public Health Center, Haripal on October 17, 2000. Then he was removed to Chandanagar Sub Divisional Hospital on the same day. Thereafter, he was removed to Chinsurah Sadar Hospital. He was further removed to the Calcutta Medical College & Hospital on October 18, 2000. He succumbed to the injuries in the above hospital on October 25, 2000. Inquest examination on the dead body of the deceased was conducted by PW 19 on October 27, 2000, at the Calcutta Police Morgue with reference to Haripal P.S. Case No. 112 dated October, 2000, on identification of the dead body by Probhat Kumar Halder, Constable No.H-49 (PW 11) and Dilip Dhonk (PW 3), elder brother of the deceased. According to the opinion of the autopsy surgeon (PW 19), the cause of death of the deceased person was due to effects of head injury which was ante mortem in nature and there was evidence of electrocution which was also ante mortem in nature.
PW 20 was entrusted with the responsibility of conducting investigation. He submitted charge sheet bearing No.65/2001 dated August 26, 2001, against the appellants for commission of offence under Sections 342/323/325/304/34 I.P.C. On May 7, 2004 charge for commission of offence under Sections 325/342/304/34 I.P.C. was framed against the appellants.
After considering the evidence of twenty (20) prosecution witnesses as also documentary witnesses the impugned judgment, order of conviction and sentence were passed.
It is necessary to place on record that a written complaint was received in the Haripal Police Station on October 17, 2000, from the appellant Susanta Sadhukhan to the effect that the aforesaid deceased person was involved in various unlawful activities like dacoity etc. and frequently disappear from the locality. On October 16, 2000, he had been found by the village people at the evening to carry 4 kgs of 'Posto' in a bag. The deceased person made an attempt to flew away. Subsequently, the deceased person confessed that the aforesaid 'Posto' had been stolen from a shop of Nalikul with the help of his brother-in-law Malik. According to the above written complaint, the deceased was rescued by the appellant Susanta Sadhukhan after saving him from local people the deceased person got little injuries and as a result he was admitted to Haripal Rural Hospital.
An FIR bearing Haripal P.S. Case No.112/2000 dated October 17, 2000, was registered at 04.05 hours in the Haripal Police Station on the basis of the above written complaint lodged against the deceased person for commission of offence punishable under Sections 379/411 I.P.C. after incorporating the above information in the General Diary bearing Entry No.641. It was forwarded to the Court on October 26, 2000.
It will not be out of context to mention here that the inquest report as also post mortem report on dead body of the deceased person were prepared with reference to the aforesaid FIR bearing Haripal P.S. Case No.112 of 2000 dated October 17, 2000, and in both the aforesaid cases bearing Haripal P.S. Case Nos.112/2000 dated October 17, 2000, and 113/2000 dated October 18, 2000, the PW 20 was appointed as Investigating Officer.
It is submitted by Mr. Bikash Ranjan Bhattacharya, learned Senior Advocate appearing on behalf of the appellants at the very outset that the FIR bearing Haripal P.S. Case No.113 of 2000 dated October 18, 2000 cannot be sustained in law in view of lodging another FIR bearing Haripal P.S. Case No.112/2000 dated October 17, 2000. According to him, the former one was registered on the basis of a complaint lodged by the appellant no.1 with regard to an incident of assaulting the deceased on the evening of October 16, 2000, by the local people upon detection of a case of stealing 'Posto'. According to him, the later one was lodged on October 18, 2000, alleging assaulting of the deceased by the appellants on October 15, 2000 at about 22.00 hours with lathi, rod as also electrocution after bringing him from his residence. According to Mr. Bhattacharya, two FIRs were lodged in violation of the provisions of Section 154 Cr.P.C. The complaint of the PW 1 should have been tagged with the former FIR for the purpose of unearthing the truth on the basis of the settled principles of law.
The next contention of Mr. Bhattacharya is that, according to the evidence of PW 1, he did not disclose the name of the assailants of the deceased to the police on the alleged date of occurrence of the incident. In the inquest report no name of the assailants of the deceased was mentioned creating doubt about the truthfulness of the prosecution case.
It is also submitted by Mr. Bhattacharya that in the sketch map plan the distance of residence of the deceased from the place of occurrence was not shown creating a doubt about the hearing of the sound of hue and cry by the PW 1 and PW 6 from the residence.
The next contention of Mr. Bhattacharya is with regard to the major contradiction of material dimension so far as the date of occurrence was concerned. According to FIR bearing Haripal P.S. Case No.113/2000 dated October 18, 2000, Charge sheet No.65/2001 dated January 26, 2001, charge framed against the appellants on May 7, 2004, under Sections 325/342/304/34 I.P.C., the date of occurrence was October 15, 2000, but according to the evidence of PW 3, PW 5, PW 6, PW 15, PW 16 and PW 20, the date of above incident was October 16, 2000. Further, in course of recording the statements of the appellants under Section 313 Cr.P.C., each of them was asked to answer one question that he had assaulted the deceased person, amongst others, in the clubroom in question on October 16, 2000.
It is further submitted by Mr. Bhattacharya that according to the evidence of PW 3, the deceased was belonging to a political party having rivalry with the political party in which the appellants belong. But according to his further evidence the deceased was asked to attend a party meeting in the club room on the date of the incident. The above evidence was contradictory to the evidence of PW 6, who had stated in his evidence that the cause of assaulting the deceased by the appellants was his joining to a political party after leaving the political party in which the appellants belong.
According to the evidence of PW 1, the appellant Sibu Das threatened him by saying that his son (the deceased) would be charged by electricity. According to the evidence of PW 4, the appellant Kashi Pal charged the deceased with electricity. According to Mr. Bhattacharya, there was not only contradiction in between the aforesaid alleged eyewitnesses with regard to the electrocution of the deceased but also no other eyewitness stated any incident of electrocution of the deceased.
According to him, all of the alleged eyewitnesses were the relations of the deceased. There was no independent witness.
It is ultimately submitted by Mr. Bhattacharya that in view of the above the doubt that the FIR bearing Haripal P.S. Case No.113 of 2000 dated October 18, 2000 was ante dated for implicating the appellants falsely in the incident of death of the deceased cannot be ruled out apart from contradictions in the ocular evidence of alleged eyewitnesses of material dimension.
Reliance is place by Mr. Bhattacharya on the decisions of Yudhishtir vs. The State of Madhya Pradesh, reported in 1971 (3) SCC 436, Lallu Manjhi & Anr. vs. State of Jharkhand, reported in (2003) 2 SCC 401, State of U.P. vs. Shiv Kumar & Ors., reported in (2005) 11 SCC 212, Thulia Kali vs. The State of Tamil Nadu, reported in (1972) 3 SCC 393, Sujit Biswas vs. State of Assam, reported in AIR 2013 SC 3817 and Rebati Baidya & Ors. vs. The State of West Bengal, reported in (2014) 1 CLJ 67 in support of his above submissions.
It is submitted by Mr. Manjit Singh, learned Public Prosecutor, that the cause of action involved in the case relating to the FIR bearing Haripal P.S. Case No.112/2000 dated October 17, 2000 was commission of offence punishable under Sections 379/411 I.P.C. It was different from that of the FIR bearing Haripal P.S. Case No.113 of 2000 dated October 18, 2000, for commission of offence punishable under Sections 342/323/325/34 IPC. According to him, the persons accused in the aforesaid cases were different. In the FIR bearing Haripal P.S. Case No.112/2000 dated October 17, 2000, the deceased was the person accused for commission of offence punishable under Sections 379/411 I.P.C and in the FIR bearing Haripal P.S. Case No.113 of 2000 dated October 18, 2000, the appellants were the persons accused for commission of offence punishable under Sections 342/323/325/34 IPC. So, according to him, the aforesaid two FIRs were sustainable in law.
Reliance is placed by him on the decisions of Awadesh Kumar Jha @ Akhilesh Kumar Jha vs. State of Bihar, reported in 2016 (3) SCC 8, Amitbhai Anilchandra Shah vs. The Central Bureau of Investigation & Anr., reported in 2013 (6) SCC 348, Anju Chaudhary vs. State of U.P. & Anr., reported in 2013 (6) SCC 384, Chirra Shivraj vs. State of A.P., reported in 2010 (14) SCC 444, Babubhai vs. State of Gujarat, reported in 2010 (12) SCC 254, C. Muniappan & Ors. vs. State of Tamil Nadu, reported in 2010 (9) SCC 567, Nirmal Singh Kahlon vs. State of Punjab & Ors., reported in 2009 (1) SCC 441, Upkar Singh vs. Ved Prakash, reported in 2004 (13) SCC 292, Kari Choudhary vs. Sita Devi, reported in 2002 (1) SCC 714 and T.T. Antony vs. State of Kerala, reported in 2001 (6) SCC 181 in support of his above submissions.
While vividly opposing the aforesaid contentions of Mr. Bhattacharya it is submitted by Mr. Ranabir Roy Chowdhury, learned State advocate that from the substantive evidence of PW 3, PW 5, PW 6 and PW 20 the date of incident appeared to be October 16, 2000. It was corroborated by the bed head tickets of the hospital concerned. Therefore, the date of incident mentioned in the FIR, the charge sheet were mere mistakes. According to him, the prosecution case was proved beyond reasonable doubt on the basis of the ocular evidence of the eyewitnesses.
With regard to mentioning of the date of incident in the charge framed against the appellants, it is submitted by Mr. Roy Chowdhury that in view of the provisions of Sections 215, 464 Cr.P.C. the prosecution case was not adversely affected for the above mistake. It is also submitted by Mr. Roy Chowdhury that under sub-Section (2) of Section 465 Cr.P.C., the objection, if any, should have been raised at an early stage. According to Mr. Roy Chowdhury, the appellants were not prejudicially affected for the aforesaid mistake in view of the fact that while recording the statement of the appellants under Section 313 Cr. P.C. the date of incident was mentioned as October 16, 2000.
It is submitted by Mr. Roy Chowdhury regarding the question of electrocution that the above fact surfaced from the written complaint dated October 18, 2000 of the PW 1. It was corroborated by the post mortem report apart from the ocular evidence of PW 3. Therefore, there was no scope of any reasonable doubt with regard to the aforesaid fact. It is further added by him that according to the post mortem report of the autopsy surgeon the deceased sustained as many as 24 injuries on his body. So, according to him, the incident of assaulting the deceased by the appellants with their associates was proved beyond any reasonable doubt.
It is also submitted by Mr. Roy Chowdhury that from the materials on record it appears that the appellant Nirapada Dhara handed over a bag containing 'Posto' to the police on October 27, 2000. Therefore, it was not recovered by the police from the custody of the deceased. It creates a doubt with regard to the alleged incident of beating the deceased on the allegation of stealing of 'Posto'.
Reliance is placed by Mr. Roy Chowdhry on the decisions of Benjamin vs. State, reported in 2008 (3) SCC 745, Umar Mohammad & Ors. vs. State of Rajasthan, reported in 2007 (14) SCC 711, Abdul Sayeed vs. State of Madhya Pradesh, reported in 2010 (10) SCC 259, Muddasani Venkata Narsaiah (D) Th. Lrs. Vs. Muddasani Sarojana, reported in 2016 AIR (SCW) 2250 and Anjan Dasgupta vs. The State of West Bengal, reported in 2016 (11) JT 294 in support of his above submissions.
We have heard the learned Counsels appearing for the respective parties and we have also considered the facts and circumstances involved in this appeal.
In order to adjudicate the first contention of the appellants that the registration of second FIR bearing Haripal P.S. Case No.113 of 2000 cannot be sustained in law, the series of events relating to this case are stated below in the order the same came to light as follows:-
(i) On October 17, 2000 FIR bearing Haripal P.S. Case No.112 of 2000 dated October 17, 2000 was registered at 04.05 hours in Haripal Police Station against the deceased person for commission of offence punishable under Sections 379/411 I.P.C. on the basis of a written complaint submitted by Sri Susanta Sadhukhan, the appellant no.5. A bag containing 4 kgs of Poppy seeds was produced in the police station at that time by the appellant no.5 claiming to be recovered from the deceased and the same was seized under proper seizure list (Ext.-C). The appellant no.1 and one Samsher Halder were the witnesses of the above seizure list.
According to the above written complaint, on October 16, 2000 at the evening the village people caught the deceased red handed while he tried to flew away after stealing 4 kgs. 'Posto' from the shop of one named Nikhil. According to the above written complaint, the appellant no.5 saved him from beating and admitted him to Haripal Rural Hospital for treatment at 02.30 hours on the above date. According to the bed head ticket (Ext.-3), the deceased was brought to the above hospital by Nirapada Dhara (appellant no.1) and one Nemai Das. From the above bed head ticket one signature of a police constable bearing no.2569 dated October 17, 2000 was found. The deceased was removed to the Chandannagar Sub Divisional Hospital on the same day. Then, he was removed to Chinsurah Sadar Hospital on the same day. According to the doctor (PW
15), the deceased was brought to the Chinsurah Sadar Hospital by his wife (PW 5).
The deceased was arrested from the Chinsurah Sadar Hospital on October 17, 2000 at 08.15 hours in connection with Haripal P.S. Case No.112 of 2000 dated October 17, 2000 while he was unconscious. Appellant no.1 put his signature in column no.10 of the above arrest memo as a witness.
(ii) On October 18, 2000 at 12.05 hours FIR bearing Haripal P.S. Case No.113 of 2000 was registered against the appellants and one Sri Susanta Pal and Sri Barun Pal for commission of offence under Sections 342/323/325/34 I.P.C. on the basis of a written complaint. The above written complaint was submitted to the Haripal Police Station by the PW 1, father of the deceased informing that on October 15, 2000 at about 22.00 hours the aforesaid persons took the deceased to Maliya Miloni Natya Teertha Club assaulted him inhumanly with lathi, rod and electrocution labeling false allegations of theft against him for political vengeance. On October 17, 2000 the informant came to know from PW 12, A.S.I. of Haripal P.S. that his aforesaid son had been admitted in Chinsurah Hospital at M.S.I. Ward in a critical condition.
(iii) Subsequently, on October 18, 2000 the deceased was removed to Calcutta Medical College & Hospital where the deceased succumbed to these injuries on the above date.
(iv) Inquest examination was held on October 27, 2000 at 15.40 hours over the dead body of the deceased with reference to Haripal P.S. Case No.112 of 2000 dated October 17, 2000.
(v) On October 27, 2000 at 16.00 hours post mortem examination was held with reference to Haripal P.S. Case Nos.112/2000 dated October 17, 2000 as also 113/2000 dated October 18, 2000.
(vi) On August 8, 2001 charge sheet no.54/2001 was submitted in connection with Haripal P.S. Case No.112/2000 dated October 17, 2000 against (1) Mukta Malik, son of Charan Malik and (2) Kartik Malik, son of Sufal Malik for commission of offence under Sections 379/411 I.P.C. showing both of them "absconders". The deceased was shown as person not charge sheeted due to his death on October 25, 2000 at Calcutta Medical College & Hospital.
(vii) On August 26, 2001 charge sheet bearing no.65/2001 dated August 26, 2001 was submitted against the appellants for commission of offence under Sections 342/323/325/304/34 I.P.C.
(viii) On May 7, 2004 charge was framed against the appellants for commission of offence under Sections 325/342/304/34 I.P.C. The impugned judgment was delivered convicting the appellants for commission of offence punishable under Section 304 Part-I read with Section 34 I.P.C. on July 26, 2010 and sentence dated July 27, 2010 sentencing each one of them to suffer rigorous imprisonment for life with fine of Rs.5000/- each and in default of payment of fine amount to suffer rigorous imprisonment for further period of six months each as also convicting each of them for commission of offence under Section 342 read with Section 34 I.P.C. sentencing each of them to suffer rigorous imprisonment for one year with fine of Rs.1000/- each and in default of payment of fine amount each of them to suffer rigorous imprisonment for further period of one month each.
(ix) Since the charge sheeted accused persons in connection with Haripal P.S. Case No.113/2000 have been absconding, the trial could not be started.
Upon a close scrutiny of Section 154 Cr.P.C. it appears that where there is more than one FIR, the first in point of time which persuaded the police officer to start investigation is recognised as FIR and the subsequent one is hit by Section 161 Cr.P.C.
However, it is not the sole criteria of FIR that it is first point of time. In order to consider a report as an FIR the same should contain the following:-
(i) It should contain information of facts disclosing commission of a cognizable offence enabling the police to initiate investigation it should not be indefinite or vague.
(ii) It may not be a report at the instance of the person aggrieved or by any person on his behalf it may be given by any one.
(iii) An FIR is the first information which sets the police in motion.
The same need not contain name of any offender or witness, nor need it sets the circumstances. Information received after commencement of investigation are dealt with under Sections 161 and 162 Cr.P.C.
However, counter information complained by the other party after information has been lodged by one party comes under Section 154 Cr.P.C. is not hit by Section 162 Cr.P.C. In Thota Ramakrishnayya & Ors. Vs. The State, reported in AIR 1954 Mad 442 it has been observed by the High Court of Madras that counter complaints received even during the investigation are not different from independent and fresh complaints made by others than the accused persons in the course of investigation of a particular offence and, therefore, are not hit by Section 162 Cr.P.C. It was also observed in the above case that counter complaint made by accused persons when sought to be used for or against them when figuring as complainants in their cases attract only the provisions of the law of evidence to corroboration or contradiction and are no more than former statements of witnesses. The relevant portion of the above decision is quoted below:-
"20. .....
Counter-complaints received even during investigation are not hit by Section 162, Criminal Procedure Code. They are not different from independent and fresh complaints made by others than the accused persons in the course of investigation of a particular offence. Therefore, both Exs. P-35 and P-1 will share the privilege of First Information Reports in this case, though in regard to the uses to which they should be put a vital distinction should be borne in mind. Counter-complaint made by accused persons when sought to be used for or against them when figuring as complainants in their cases attract only the provisions of the law of Evidence to corroboration or contradiction and are no more than former statements of witnesses; yet in so far as nothing precludes their use even in cases against them as accused persons, it should be borne in mind that when so used they attract the provisions as to admission-and confessions."
In T.T. Antony (supra) it was observed by the Hon'ble Supreme Court that where more information than one were given to a police officer in-charge of a police station in respect of the same incident involving one or more than one cognizable offence, he need not enter every one of them in the station house diary as implied in Section 154 Cr. P.C. The information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station was the First Information Report properly known as FIR postulated by Section 154 Cr. P.C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the FIR and entered in the station house diary by police officer or such other cognizable offences as may come to his notice during the investigation, would be statements falling under Section 162 Cr. P.C. According to the above decision, no such information/statement could properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same could not be in conformity with the Criminal Procedure Code. However, the Hon'ble Supreme Court carved out the counter case from the above general principle of law observing that a case of a fresh investigation based on the second or successive FIR filed in connection with the same or connected cognizable offence alleged to have been committed in course of same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173 (2) had been forwarded to the Magistrate is not maintainable in the eye of law provided the same not being a counter case.
Subsequently, the Larger Bench of the Apex Court granted leave in respect of the appeal in the matter of Upkar Singh (supra) which was referred to the above Bench for considering the ratio laid down in the case of T.T. Antony (supra). According to the above decision, in the event the law laid down in T.T. Antony's case was to be accepted as holding a second complaint in regard to the same incident filed as counter complaint was prohibited under the Code then, such conclusion would lead to serious consequences. In the event in regard to a crime committed by a real accused he takes the first opportunity to lodge a complaint and the same is registered by jurisdictional police then the aggrieved victim of such crime would be precluded from lodging a complaint giving his version of the incident in question consequently he would be deprived of his legitimated right to bring the real accused to book which could not be purport of the Code. As a result in the aforesaid circumstances finally of a counter complaint was held to be permissible. The relevant portion of the above decision is set out below:-
"24. Be that as it may, if the law laid down by this Court in T.T. Antony's case is to be accepted as holding a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question consequently he will be deprived of his legitimated right to bring the real accused to books. This cannot be the purport of the Code.
25. We have already noticed that in the T.T. Antony's case this Court did not consider the legal right of an aggrieved person to file counter claim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible."
Therefore, in view of the above, registration of two FIRs for the same offence has been prohibited according to the settled principle of law. However, it does not preclude from lodging of two FIRs in respect of the same incident of commission of different cognizable offences containing allegations which are materially different in nature.
Now, coming back to the case in hand we find that the contention of the Haripal P.S. Case No.112/2000 dated October 17, 2000 was stealing of Poppy seeds by the deceased person from a shop. He was rescued from beating/assaulting by the village people removing him to hospital. The complaint was lodged by one of the accused persons in the Haripal P.S. Case No.113/2000 dated October 18, 2000.
Therefore, the Haripal P.S. Case No.113/2000 dated October 18, 2000 was virtually the second FIR in respect of the same incident. It was a counter complaint lodged by the father of the deceased. Though the versions given by both the informant were materially different disclosing different allegations of commission of cognizable offences in respect of a single incident.
Therefore, it was not being prohibited under the provisions of Section 154 Cr. P.C. read with Sections 161 and 162 Cr. P.C. It will not be out of context to observe that the propriety of the action on the part of the investigating agency in submitting the charge sheet in respect of both the FIRs is subject to the scrutiny of the trial Court at a later stage. But registering of two FIRs are sustainable in law on the basis of the settled principles of law taking into consideration the facts and circumstances of the case in hand.
The first contention of the appellants on the merit of this appeal is the inordinate delay in lodging the first information to the police and unexplained delay of ten days in forwarding the same to the Court for false implication of the appellants in commissioning of the offence. Delay in lodging the FIR by itself cannot be a ground to doubt the prosecution case. But in a case where no explanation is offered for extraordinary delay in sending the report to the Magistrate, it is a circumstance which provides a legitimate basis for suspicion about the prosecution case. Reference may be made to the decision of Iswar Singh vs. State of Uttar Pradesh, reported in AIR 1976 SC 2423 and the relevant portion of the above decision is quoted below:-
"9. We have pointed out that the trial court in conviction the appellants overlooked certain significant features of the case, namely, the inordinate and unexplained delay in dispatching the first information report to the magistrate; the difference in the account given by the prosecution witnesses and as appearing from the first information report of the occurrence; the absence of any statement in the first information report as to the injuries received by some of the accused, and the non-examination of material witnesses. The High Court in affirming the judgment of the trial court also failed to advert to these circumstances. We do not therefore think that the case against the appellants has been proved beyond reasonable doubt. The appeals are accordingly allowed and the order of conviction and the sentences passed on the appellants are set aside. We direct that the appellants be set at liberty forthwith."
In the instant case, the formal FIR was registered in the Haripal police station bearing No.113 dated October 18, 2000, at 12.05 hours on receipt of a written complaint from the PW 1 on the above date regarding assaulting his fourth son by the appellants on the night of October 15, 2000, at about 22.00 hours taking him to Maliya Miloni Natya Teertha Club hauling him from sleep. Apart from delay of three days in lodging the above complaint and registration of formal FIR thereof, there was an unexplained delay of eight days in forwarding the same to Court of the learned Sub Judicial Magistrate concerned. The above facts and circumstances of this case lead to a suspicion which requires careful consideration of other circumstances from the materials on record including the evidence adduced by the relevant prosecution witnesses before drawing an inference.
According to the PW 1, who was the FIR maker, went to the place of occurrence hearing hue and cry of the deceased from the residence. Police came to village-Malia at late hours. The PW 1 did not accompany the police at the time of removal of his fourth son to hospital. Neither did he inform of names of the appellants to the police at that time. Noteworthy, that the signature of constable No.2569 appeared in the relevant paper of admission of the deceased in the Public Health Center, Haripal. The above piece of evidence of the PW 1 not only creates suspicion of embellishment or fabrication in disclosing the names of the appellants to the police at that time and disclosure of the names of thirteen accused persons including those of the appellants with their particulars in details by filing written complaint after two days but also establishes the fact of presence and knowledge of the police about the occurrence of commission of the above offence. The evidence of PW 2, PW 3, PW 4, PW 5 and PW 6 was corroborating with that of the PW 1 regarding the presence of the police at village-Malia and removal of the deceased to Public health Center, Haripal by the police. According to the evidence of PW 3 and PW 6, they told the entire incident to the police at that time. The conduct of the police not to register FIR at that point of time which was followed by further unexplained delay of eight days in forwarding the same to Court should not have been ignored by the learned trial judge casting doubt about the truthfulness of the prosecution case.
Moreover, though the body of the deceased was identified by one Probhat Kumar Halder, Constable No.H-49, at the time of inquest examination, non-disclosure of the names of assailants in that report as an outcome of the preliminary examination, created further dent to the prosecution case in the facts and circumstances of this case.
In addition, there was failure on the part of the learned trial judge to take note of one peculiar fact of the case that according to the evidence of PW 1 and PW 2, many persons of the village were present at the place of occurrence but no independent witness of the village concerned was produced before the Court by the prosecution.
In view of the distinguished facts and circumstances of this case, the general proposition of law laid down in Umar Mohammad (supra) and Anjan Das Gupta (supra) that the FIR need not be an encyclopedia, does not help the respondents.
The next contention of Mr. Bhattacharya relates to the contradiction regarding the date of occurrence in the FIR, the charge sheet and the charge framed against the appellants with the date surfaced from the evidence of some of the eyewitnesses, namely PW 3, PW 5 and PW 6. The FIR can only be used to discredit the testimony of the maker of the first information report. It cannot be used to contradict or discredit the other eyewitnesses if their testimonies are found to be worthy of reliance and so in these circumstances their evidence will have to be scruitinised.
Further, the mentioning of a particular charge in the police Challan cannot be said to be sacrosanct. Only the Court has to frame charge or alter it or add new charge at any time before judgment is pronounced. According to the provisions under Section 212 Cr. P.C. no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in charges, unless, in the opinion of the court, a failure of justice has in fact been occasioned thereby. So, mere error of date or place of minor inaccuracies is not sufficient to quash conviction unless it has prejudiced the accused and caused a failure of justice. It was observed by the Hon'ble Supreme Court in Main Pal vs. State of Haryana, reported in (2010) 10 SCC 130, that in judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities as their main concern should be to see whether the accused persons have a fair trial, whether they knew what they were being tried for, whether the main facts sought to be established against them were explained to them fairly and clearly, and whether they were given a full and fair chance to defend themselves and the relevant portion of the above decision is quoted below:-
"17. The following principles relating to Sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations:
(i) The object of framing a charge is to enable an accused to have a clear of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defense will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defense, that is, if the defense of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge.
(iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself."
Coming back to the instant case, we are of the opinion that at the end of the day the learned Court below should have taken into consideration that though the presence of police at the place of occurrence at late night on the date of occurrence, removal of the deceased to the Public Health Centre, Haripal, as also disclosure of the names of the appellants for assaulting the deceased surfaced from the evidence of PW 1, PW 2, PW 3, PW 4, PW 5 and PW 6, the inordinate delay of two days in lodging FIR and unexplained delay of eight days in forwarding the FIR to the Court for the purpose of acting with a broad vision and look to the substance in judging the question of prejudice in the light of the contradiction of the date of occurrence as mentioned in the FIR, Charge sheet and in the charge framed against the appellants with that evident from the testimonies of the PW 1, PW 2, PW 3, PW 4, PW 5 and PW 6. In view of the above peculiar facts and circumstances of this case, the impugned judgement, order of conviction and sentence require our interference.
Considering the peculiar facts and circumstances of this case the decisions of Abdul Sayeed (supra) and Muddasani Venkata Narsaiah (supra), do not help the prosecution in any way.
With regard to the submission made by Mr. Roy Chowdhury that prosecution case was proved beyond any reasonable doubt in view of corroboration of the evidence of PW 1 and PW 4 with the opinion of the medical expert (PW 19) that the cause of death of the deceased was electrocution at the place of occurrence, we are not inclined to accept that the electrocution could have been caused at the place of occurrence only.
We do not think that the general proposition of law settled in the decision of Benjamin (supra), regarding the effect of corroboration of ocular evidence with medical evidence helps this prosecution case.
In the premises, this appeal is allowed. The impugned judgment, order of conviction and sentence are quashed and set aside.
This appeal is disposed of accordingly.
Let this judgment together with the Lower Court's records be sent back to the learned Court below expeditiously.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)