Calcutta High Court
Joydeb Das Alias Jogi & Anr. vs The State Of West Bengal on 5 January, 1999
Equivalent citations: (1999)2CALLT152(HC), 1999CRILJ1816
Author: B. Panigrahi
Bench: Basudev Panigrahi
JUDGMENT B. Panigrahi, J.
1. This apeal is directed against the Judgment dated 29th August 1990 passed by the learned Sessions Judge. Xth Bench, Calcutta In Sessions Trial No. 1 of 1990 by asking the appellants to undergo Imprisonment for life and to pay a fine of Rs.1000/- each. In default, to sufffer R.I. for six months more.
2. The prosecution case succinctly stated as follows :
On 10.2.89 at about 7 P.M. there was a quarrel between the appellant Jaydeb @ Jagi and his wife on the one hand and the deceased on the other. During the course of quarrel the deceased Sankar Ghosh was said to have slapped on the face of the appellant Jagi. The gentlemen of the locality Intervened and amicably settled the dispute. The appellant Jagl however, had thereatened that he would take revenge on the deceased Sankar. Thereafter, on the same night at about 11 P.M. while the deceaseed Sankar was sitting in front of "Mastarda Charitable Dispensary" the appellants and two other accused persons being armed with 'Napala' and bombs attacked the deceased Sankar. The appellants Jagi and Kachi were said to have dealt with Nepala and the other accused persons harled bombs. After the incident while fleeing away from the place of occurence, they shouted 'Sankar was done away with'. However, as a result of such assault Sankar sustained severe bleeding Injuries and fell down helplessly on the road. Few persons of the locality then removed Sankar to the Medical College Hospital where he succumed to his Injuries. One of the persons being present at the spot Informed the Incident to the police over telephone which was dlarised as per G.D. Entry No. 1005 dated 10.2.89. On receiving the said information the police immediately swang Into action. At the place of occurrence, the police officer recorded the statement of Ashoke Ghose, brother of the deceased Sankar vide P.S. Case No. 49 dated 11.2.89 which was treated as first information report and registered the case under section 302/34 of the Indian Penal Code and proceeded with further Investigation. After completion of Investigation they submitted a charge-sheet against the appellants and two other acquitted accused.
3. The defence of the appellantes as well as other acculsed persons was totally denial of the prosecution case. They further pleaded to have been falsely implicated In this case. The trial court In order to bring home the charge to the appellants has examined 20 witnesses. According to the prosecution case, the evidence of there witnesses lends to support the prosecution case, namely P.W. 4, P.W.7 and P.W.8 who are the brother, wife and sister of the deceased Sankar Ghosh.
4. The appellants. In course of hearing raised several pleas regarding the Improbability of the prosecution case. At the outset the learned Advocate for the appellants has drawn our attention that the statement made by P.W.4. Ashok Ghosh is nothing more than a statement In course of investigation which should not be treated as FIR It has been also indicated that such statement being hit under section 162 of the Code of Criminal Procedure cannot be used for any other purpose than for confronting or cross-examining the witnesses. P.W.10, Samir Roy, had furnished the telephone message to the police station which was dlarised. The said Information was meant only to inform the police regarding occurrence with did not contain any details. That telephonic message was meant to make the Investigating agency only rush to the place of occurrence. In this aspect, we can rely upon a Judgment In the case of Dhananjoy Chatterjee v. State of West Bengal, wherein the Hon'ble Supreme Court has held that the statement of mother of the victim recorded by the I.O. after reaching the spot rightly treated as FIR by the prosecution and the trial court. In that view of the matter, any telephonic information that was lodged by P.W.10 was only to Inform the police to go to the spot and nothing beyond that. In such situation, it could not be said that subsequent statement made by P.W.10, the brother of the deceased, be hit under provision of section 162 of the Code of Criminal Procedure.
5. The deceassed Sankar was shifted to Medical College Hospital in a very critical condition by the street people. In order to prove such aspect the prosecution has relied upon the inquiry certificate of the viciirn Sankar, which revealed that an unknown male person with multiple cutting injuries was brought to the hospital. The name of the victim Sankar, was strangely not noted In the record of Impatlents register. The post mortem report was not exhibited in this case. The medical officer who conducted autopsy examination, was examined as P.W. 15, Subrata Kundu, who deposed that an unknow person seems known as Sankar Ghosh was subjected to post mortem examination on 12.2.89 at about 8.00 p.m. The deceased was identified by the constable No.82, Netal Mondal, P.W.16. From the evidence of P.W. 16, Netal Mondal, It appears that the mother of the deceased, Sankar Chosh, Identified the dead body at the morgue. Therefore, till the victim, Sankar was shifted to the morgue he was not Identified by any of the inmates namely mother, widow of the deceased, his sister as well as his brother. The mother during Investigation although had claimed to have Identified the deadbody of Sankar, but strangely she was with-held from being examined. The prosecution was utterly failed to explain as to why she was with-held from being produced In court.
6. P.W.4, Ashok Ghosh, the brother of the deceased, has in his examination-in-chief narrated that there was a pre-occurrence incident resulting in a quarrel between the appellants Jogi and his wife on the one hand and the deceassed on the other. But It was however, subsided at the intervention of the local people. Therefore, such incident which occurred prior to the occurrence has no relevence while deciding this appeal. The appellants have disputed that the deceased was ever residing .In the premises No. 19/D/H/16, Goabagan Street In front of Mastarda Charitable Dispensary". While considering the evidence of P.W.4 it has to be borne in mind that even though he was the brother of the deceased, he did not accompany Sankar Ghosh to the hospital, it has been further indicated from the evidence of P.W.4 that there were several litigations in which the deceased Sankar Ghosh was implicated and he was not residing In the locallity for a period of two years prior to the occurrence. We are at a loss to understand that although the victim Sankar Ghosh received critical injuries, yet P.W.4 did not either go to the police station to furnish information nor to the hospital accompanying the victim. It appears against the normal human conduct. He also did not disclose that he found the other two witnesses namely P.W.7 and P.W.8 being present or subsequently arrived at the place of Incident.
7. P.W.7 Chaitati Ghosh is the widow of deceased Sankar Ghosh. From her ocular testimony it appears that her husband was not residing in the locality to avoid quarrel with the other persons of the vicinity. P.W.4, the brother of the deceased has also supported the version of P.W.7 that the victim left the locality due to pendency of several criminal cases. From the evidence it further transpired that the accused Plney searched for her husband around 11 O'clock in the night. On being asked as to why they were searching for her husband, they could not give any satisfactory answer. Since such search created a doubt in her mind and In the meanwhile she heard the sound of explosion of a bomb. She ran towards that site. But this version has not been corroborated by P.W.4. P.W.7 also did not claim herself to be an eye witness to the Incident. The mother-in-law of P.W.4 was examined on I2th February, 1989. It has been elicited by defence that P.W.7 did not state before the police that there was quarrel between her husband on the one hand and the accused on the other. Therefore, the version which has been stated in court appears to be nothing but an improvement by way of embellishment. It is further quite unlikely that the wife of the deceased shall not speak the incident to other persons except to the police. In such view of the matter the ocular testimony of P.W.7 seems to be very much doubtful and not beyond reapproach.
8. P.W.8 Chaya Chatterjee has claimed herself to be an eye witness of the occurrence. She was examined by the Investigating Officer on 12th February, 1989. The Investigating Officer has not submitted any explanation as to why he chose to examine two days after the Incident although the witness claimed to have been living within the same locality where the incident has taken place. In the FIR the name of P.W.8 has also not been disclosed. It was submitted by the appellants, that had the P.W.8 been an eye witness to the incident, P.W.4 could not have omitted to mention such fact In the FIR From the evidence of P.W.8 it does not transpire that immediately alter the occurrence the prosecution witnesses, namely, P.W.4 and P.W.7 reached at the spot. The suggestion of the defence was that P.W.8 was not residing in the locality where the Incident has taken place although she claimed to be a resident. In course of Cross-Edamination It was elicited from P.W.S that she told the police that she resided in a rented house at 19D, Gobagan Street. Such statement on being confronted to the Investigation Officer, who deposed that P.W.8 did not state before him that she resided in a rented house at 19D, Goabagan Street. She also further did not state that the deceased Shankar Ghosh used to reside at 19D, Goabagan Street. In view of such consistent evidence of the prosecution witnesses that the victim was not residing within the locality for about two years proceeding the occurrence, it becomes further doubtful that he was present at the time of occurrence or at the place of incident as narrated by prosecution.
9. P.W.9 has claimed to have gone to the place of occurrence after having heard the explosion of the bomb. But she stated such explosion was an usual feature in the locality. In that view of the matter it is not known as to why this particular Incident of explosion has drawn her special attention so that she had rushed to the place of occurrence. There has been no explanation from the prosecution as to what was the significant feature for which P.W.8 was prompted to proceed to the place of occurrence. It is further strange to note that even though her husband was present in the house, she had not accompanied with the victim to the hospital nor had gone to the police station. All these features appears to be against normal human conduct which whittles down the credibility of the prosecution case.
10. The appellants have relied upon a decision reported !n in the case of State of Orissa v. Brahmananda Wanda where the Hon'ble Supreme Court has held "where in a murder case the entire prosecution case depeded on the evidence of a person claiming to be eye witness and this witness did not disclose a name of the assailant for a day and a half after the Incident and the explanation offered for nondisclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct In rejecting It as untrustworthy and acquitting the accused".
11. The appellants further relied upon a Judgment reported in 1996 Criminal Law Journal, page 3842 In the case of Alil Mollah & Another v. State of West Bengal. In the above case It was held that the eye witnesses admitted to have not stated about the occurrence to any other person besides the police, therefore, their version was very much doubtful. In this case also the P.W.4, P.W.7 and P.W.8 had not claimed to have divulged the Incident to others. Thus their testimony seems to be Incredible and doubtful and not beyond reapproach.
12. The Death Certificate disclosed that the victim Shankar died at 3-30 A.M. on 11.2.89. But all the material witnesses of prosecution had unequivocally stated that the victim died within an hour. Therefore, their statements also further does not bear any truth.
13. P.W.15, the Medical Officer Dr. Subrata Kundu has In his evidence stated that by seeing the injuries with its nature, colour and other factors he arrived at the conclusion regarding the time when the injury was inflicted before the death, in other words the age of the Injury. In the instant case he did not mention the colour of the Injury Nos. 1 to 14. He has further deposed that if the Injuries are more than 24 hours' old, in such case he used to write the characteristic of the injury. On the other had if the injuries are fresh one, withing 24 hours, then he does not mention such deatils. Admittedly the Post Mortem Examination was held at 2-00 P.M. on 12.2.89. In that event, in all possibility the injuries might have been inflicted within 24 hours from the date of Post Mortem Examination. But the ocular testimony of the witnesses disclosed that such incident took place on 10.2.89 at about 11-00 A.M. The Medical Certificate also disclosed that the deceased Shankar died at 3-00 A.M. on 11.2.89. Therefore, the cumulative reading of the above aspect, we are of the view that the prosecution has not been able to bring home the charge for the accused persons beyond all reasonable doubt.
14. In this case, besides the family members, other persons of the locality are stated to have been present at the time of occurrence. The prosecution is not able to disclose the reasons why other witnesses have been withheld from being examined.
15. The appellants have further contended that although P.W. 18 Ashoke Biswas who was said to be a witness who had claimed to have taken the deceased to the hospital was tendered for cross-examination but he was not chosen to be examined by the prosecution . Therefore, such tender for the purpose of cross-examination will not in any manner help them. In support of such contention reliance was placed on the Judgment repoorted In AIR 1995 SCW, page 2521 In the case of Sukhbant Singh v. State of Punjab where It has been held by the Hon'ble Supreme Court that the effect of witnesses being tendered only for cross-examination amounts to the failure of the prosecution to examine them at the trial. Their examination, therefore, seriously affects the credibility of the Prosecution case and detract materially from its reliability. Thus, in our opinion, even If P.W. 18 was tendered for cross-examination, such tender will not cure the Inherent defect by not examining such witness by the prosecution. Although two Nepalas were allegedly recovered from both the appellants, but one was chosen to be proved by the prosecution but not the other. Even though it was marked as Material Ext. I but from the report of the Serologist it does not reveal that there was any incriminating material connecting the appellants with the crime. The Investigating Officer, P.W.20 has stated in his evidence that he had seized one pair of Chappal and one pair of Shoe.
He had further taken foot print Impression of the appellant Jogi and he sent the said foot-print impression along with the seized chappal and shoes for chemcal examination. But those reports do not reveal that those foot prints belong to the appellant Kuchi as the opinion was in the negative. The finger prints of the accused appellants had been taken from the Nepala but the report was found to be negative. In such view of the fact, even assuming such seizure was made from the appellants, yet those facts will not help the prosecution in order to prove its case against them.
16. In the instant case there was no clear evidence regarding the involvement of the appellants In the incident and the version of the eyewitnesses of the prosecution appears to be incredible, suspicious and also untrustworthy. Thus, the benefit must go to the appellants as the prosecution could not prove its case with the clinching evidence against them.
17. On a alass and critical analysis of the prosecution evidence, we found that the prosecution has not been able to prove Its case In order to bring home the charge against the appellants. Therefore, we are, however, unable to agree with the conclusion of the learned Sessions Judge and accordingly we allow the appeal and acquit the accused appellants (1) Joydeb Das @ Jogl and (2) Chandan Das @ Kochi. Therefore, they may be set at liberty forthwith.
D.P. Kundu, J.
18. I agree.
19. Appeal allowed