Calcutta High Court
Jugal Kishore Singh vs State Of West Bengal on 30 January, 2002
Equivalent citations: (2002)1CALLT528(HC)
JUDGMENT P.K. Biswas, J.
1. Through this appeal, the appellant Jugal Kishore Singh challenges the Judgment and order dated January 17, 1994 passed by the Additional Sessions Judge, Hooghly in Sessions trial No. 110 of 1993 whereby the convict/appellant has been convicted under Section 304 part - II of the Indian Penal Code and sentenced to suffer rigourous imprisonment for four years. Briefly stated the prosecution case as mainly emerged from the recital contained in the FIR lodged by one Biswanath Routh is as under:
2. That on 27.1.1993 at about 11 p.m. one Sunil Kumar Routh, an employee of Gurubhata came to Chandanpore Milanbhata to meet some villagers of Chandanpore and at that time he was under the Influence of liquor. Sunil made some in-coherent speech for which Jugal Kishore Singh, a Munshi of Milanbhata, took serious exception and out of anger and annoyance he started assaulting Sunil with fists, blows and kicks, when Sunil fell down being so assaulted.
3. Jugal Kishore Singh also tied his hands and feet with a rope and brought him Inside the godown room and put a padlock on the entrance door, Ignoring the request of some of the villagers.
4. After hearing groaning sound from inside the godown, assembled people requested Jugal to open the padlock and ultimately Jugal opened the door and then it was found that Sunil was lying dead inside the go-down.
5. The present case was started on the basis of the written information lodged by Biswanath Routh and on completion of investigation, the police submitted charge-sheet against the accused person on 7.4.93 under Section 304 of IPC.
6. Upon hearing both sides, the learned trial Judge framed charge under Section 304 of IPC against this accused person, Jugal Kishore Singh.
7. The prosecution in order to bring home the charge has examined in all 9 witnesses and they are PW 1, Balaram Routh, PW 2, Nandan Routh, PW 3, Guru Prosad Routh. PW 4, Smt. Moyna Routh, PW 5, Bholanath Ghosh, PW 6, Kaliprasad Deb. PW 7, Kanan Ghosh, PW 8, Ashutosh Mukherjee and PW 9, Paresh Ch. Roy.
8. The defence case as made out through cross-examination is one of innocence, besides above. It has also been claimed on behalf of the accused that he has been made a victim of circumstances by some designed persons, specially by some of the prosecution witnesses, who bore grudge against this accused/appellant.
9. The learned Additional Sessions Judge recording the evidence of as many as 9 witnesses and after hearing both sides, came to the conclusion that the prosecution has succeeded beyond any doubt to prove its case that on 21.7.93 accused Jugal Kishore Singh assaulted the victim Sunil Kumar Routh in the manner as stated by PWs 1 to 3 and victim Sunit Routh expired due to the assault, as opined by the doctor. He has further found that from the behaviour and conduct of the accused, the accused appellant has proved that he had the knowledge that the Injuries caused on the body of the victim were sufficient to cause his death in the ordinary course. And thereafter, found this accused appellant guilty of the offence under Section 304 part-II of IPC. and accordingly, he convicted the accused/appellant and sentenced him to suffer R.I for four years.
10. Being aggrieved by finding of guilt recorded against the convict appellant, Jugal Kishore Singh and the sentence awarded, the present criminal appeal has been filed by the aforesaid convict-appellant.
11. I have heard the learned counsel Sri Sekhar Bose appearing for the accused at length, but none appeared on behalf of the prosecution and as such I had no occasion to hear anything from their side. Sri Sekhar Bose, learned advocate appearing for the appellant has taken me through the evidence of prosecution witnesses, examined in connection with this case, so also through the impugned Judgment and order of the learned Additional Sessions Judge, Hooghly.
12. Drawing my attention to the evidence of PW 1, Balaram Rough, PW. 2, Nandan Routh and PW 3, Guru Prosad Routh, it has been contended on behalf of the appellant that PW 1 and PW 2 differ on material points as PW 1 Balaram in his evidence exclusively fixes up present accused appellant Jugal Kishore Singh for the cause of death of Sunil Routh, but PW 2 Nandan Routh in course of his evidence Introduced at least two others for carrying the dead body inside the godown and assault inside the go-down. He has further drawn my attention that PW 3 Guru Prosad Routh himself during his evidence has admitted that he was not present during the time of inquest, but strangely enough his signature was appearing in the Inquest report (Ext2).
13. Drawing my attention to the evidence of PW 4, Smt. Moina Routh who is none but the wife of the victim, he has further submitted that this witness has come out with a different story altogether alleging that her husband was killed by many people in Milanbhata Brick filed and coming to the Milanbhata Brick filed, she found that the dead body of her husband was lying on the ground of Millanbhata brick field. In this connection, he has further submitted that in view of the aforesaid clear and unambiguous evidence adduced by the wife of the victim, no reliance whatsoever can be placed on the evidence of PW 1, PW 2 and PW 3 Inasmuch as it has come out on the evidence that there were some sort of grudge or animosity between those witnesses and the accused appellant.
14. Drawing my attention to the exhibit 5, Post Mortem Report, it has been contended on behalf of the accused/appellant that the said report was made an exhibit in connection with this case with the aid of Section 294 of Code of Criminal Procedure due to the fact that the autopsy surgeon, who held the post mortem on the dead body of the victim was not examined by the prosecution in connection with this case and the learned trial Judge thereafter placed his utmost reliance on such report to ascertain the cause of death, which was not at all justified in view of the fact that the defence' during trial raised objection with regard to the taking of the aforesaid post mortem report into evidence and the same could be seen from the exhibit list itself wherein it has been clearly mentioned that the same has been made an exhibit with objection of the accused/appellant.
15. Furthermore, nothing is indicated in the order-sheet that the present accused appellant or his learned counsel was called upon, either to admit or deny the genuineness of such documents, as envisaged in the Section itself and even after raising specific objection from the side of the accused appellant, the learned trial Court proceeded to admit the aforesaid document that is post mortem report into evidence as exhibit and ultimately placed his reliance on such report for fixing up utmost responsibility upon this accused appellant for causing bodily injury upon the victim holding further that knowing fully well that those are likely to cause death of the victim such bodily injury was inflicted upon the victim by this accused/ appellant and ultimately convicted the accused/ appellant under Section 304 (part-II) of IPC.
He has further submitted that the learned trial Judge was not at all Justified to receive the post mortem report as exhibit without the autopsy surgeon being examined and/or in view of the legitimate objection, being raised by the defence. He has further submitted that in view of Section 60 of the Evidence Act, the prosecution is bound to lead best evidence available to prove a certain fact and it the Instant case needless to say that it was the autopsy surgeon, who held the post mortem examination. He has further submitted that in an exceptional case as per proviso to this provision regarding reception" of opinion evidence alike the provision in Section 32 of the Evidence Act, such report of autopsy surgeon may be proved through some other competent witnesses, but this being not done in the present case, the reception of the post mortem report by the leaned trial Judge in evidence was totally illegal and unsustainable in law.
It has further been submitted on behalf if the accused appellant that the provisions of Section 60 of the Evidence Act when considered with the provisions of Section 45 of the said Act go to show that the post mortem in absence of the examination of the doctor who held the post mortem examination is not a substantive evidence and the expression read in evidence does not mean read as substantive evidence. In a case where post mortem report is covered under Section 294(1) of Cr.PC, the matters which could be 'read as evidence' under Section 294(3) of Cr.PC are factum of holding of the post mortem examination of the dead body by the doctor on the date mentioned in the post mortem report, the identification of the dead body before the doctor by the person claiming to have identified the dead body as well as the existence of the injury found by the doctor on an examination of that dead body but the opinion given by the doctor in the post mortem report about the cause of the injuries or the effect of the injuries or the dimension of the Injuries found by him cannot be substantive evidence in view of the bar of Section 60 of the Evidence Act.
Here, in this case the post mortem report which has been marked as exhibit 5, even after raising dispute from the side of the accused appellant, does not, therefore, come under Section 294(1) or under Section 294(3) of Cr.PC and as such the post mortem report (exhibit-5) was quite inadmissible in law and the learned trial Judge could not have possibly looked into such inadmissible document for inflecting punishment in this case against the present accused appellant after placing his reliance upon such inadmissible document.
Again, he has pointed out with regard to some glaring discrepancy in the prosecution case alleging that the place of occurrence, as transpired in oral evidence was Mllanbhata but inquest report (exhibit 2) shows that the dead body was recovered from Gurughata, but no plausible explanation has been offered from the side of the prosecution to indicate in the evidence that who took the dead body there and there being such missing gap to link up the entire chain of the circumstances in connection with this case, hardly any reliance can be placed on the prosecution evidence to link up this accused appellant alone with the concerned crime of committing murder of the victim Sunil Routh.
It has further been pointed out from the side of the accused appellant that PW 4, Moina Routh was the wife of the victim and in her evidence she was very much categorical in saying that her husband was killed by many people in the Milanbhata brick field. This evidence of the witness entirely falsifies the evidence of PW 1, 2 and 3 that it was this accused appellant who was solely responsible for inflicting assault on the person of the victim. In spite of such evidence by this witness PW 4, Moina Routh no steps was taken from the side of the prosecution for cross examination of this witness and merely upon surmises and conjectures, the learned trial Judge has made an observation to the effect that there is no scope to deny that wife of the victim has come before the Court only to see the acquittal of the accused and not to help the Court to render true Justice.
According to Mr. Bose, the learned counsel for the accused appellant, the same was quite unjustified and untenable in law and such findings of the trial Court, and the subsequent ultimate findings of the trial Court, placing reliance upon the post mortem report that the victim met the death due to assault by a single Individual, cannot therefore be accepted at all.
22. Now pointing out the above infirmities, he has submitted further that in this case, there is no cogent material available before the Court to come to a specific finding that the death of this victim was caused due to the assault by this accused/appellant alone since it has further transpired from the evidence on record specially from evidence of PW 2 that there were at least some other persons, other than the accused/appellant who allegedly carried the dead body inside the godown along with accused/appellant. He has further submitted that in the contest of such evidence, together with evidence of PW 4 as above, the present accused appellant is entitled to have an order of acquittal for benefit of doubt, as there is no cogent and sufficient evidence and materials on record to fix up responsibility upon this accused/ appellant alone for causing murder of the victim.
23. I have gone through the evidence and Judgment of the lower Court. with meticulous care.
24. Here, in this case, the learned Judge placed his utmost reliance on the evidence of PW l (Balaram Routh), PW 2 (Nandan Routh) and PW 3(Guru Prosad Routh), At the same time, he has also ignored the evidence of PW 4, Moina Routh with the observation that she came before the Court to see the acquittal of the accused and not to help the Court to render true Justice, but such observation, as it appears, was made by him, without any cogent materials available before him.
25. It further appears from the evidence of PW 4, that the aforesaid witness came with a specific evidence that one Haripada Routh came to her and Informed to her that her husband was killed by many people in Milanbhata brick field, yet, the prosecution did not take steps for cross-examination of this witness to elicit the truth and it is quite apparent that she was the most affected person due to the death of the victim, as normally being the wife, she ought to be very much concerned with the death of her husband and it is more so when there is no other evidence adduced from the side of the prosecution that she went astray or she has otherwise affairs with somebody else or that she had strained relationship with her husband.
26. Now, on the fact of such evidence, adduced by the wife, the oral evidence as has been adduced by PW 1 Balaram Routh and PW 2, Nandan Routh, Pw 3, Guru Prosad Routh cannot solely be relied upon to from basis of the conviction of this accused appellant Inasmuch as it has come out in the evidence from the PW 1, Balaram that it was only Jugal. who played the entire part with regard to assault upon victim and ultimately took him inside the godown. But, in the evidence of PW 2, Nandan Routh, this witness, has at least admitted that one Jugal and another Munshi, Sanat and others were there for carrying the victim Sunil to a godown of the bhata and furthermore, it has also transpired from their evidence regarding presence of some other persons, whom prosecution did not choose to examine in connection with this case.
27. Furthermore, from the Inquest Report (Exhibit 2) it is seen that the inquest was performed on the dead body of the victim at Gurubhata, Chandanpore but as per the evidence of P.W. 1 Balaram. Routh and P.W. 2, Nandan Routh the incident of assault upon this victim took place on the road adjacent to Milanbhata brick field and ultimately the victim was allegedly taken inside the godown at Milanbhata brick field, where ultimately he was found dead.
28. But, from the seizure list (exhibit 1) it is seen that the rope about 6 cubit was seized from the godown of Milanbhata brick field which was allegedly used in tying up the victim and from the evidence of P.W. 9, Paresh Ch. Roy, it is also seen that the inquest was held in front of store room of Milanbhata brick field. In view of the above position of the evidence, there remains a missing link that as to how the dead body of Sunil Routh was removed from inside the godown of Milanbhata brick field to a place where inquest was performed on the dead body of Sunil.
29. No explanation whatsoever has been offered from the side of the prosecution with regard to the aforesaid facts, but the learned trial Judge has observed that it was not Improbable that when the death of the victim was ascertained, his dead body was brought to Gurubhata where he used to work and where he had his family and the inquest may be held there but that does not in any way help the defence case. But, I am not in a position to accept such logic in the absence of any cogent materials available in this case and it has, therefore, become doubtful to come to a definite conclusion that it is the accused alone and none else, who caused the fatal assault upon the victim for which he ultimately died.
30. r have already discussed above that P.W, 2, Nandan Routh at least in his evidence has introduced a story that Sunil was lifted by Jugal, Sanat and another by making a departure from the evidence of P.W, 1 and P.W. 3 and in such event, until and unless it is fixed up by cogent and overwhelming evidence that it was the accused alone who caused fatal assault upon the victim resulting him in his death, heardly it is possible to convict him in connection with the present case under Section 304 (Part II) of IPC.
31. It is further seen from the materials available that the learned trial Judge taking aid of the provisions of Section 294 of Cr.PC, has introduced the post mortem report into evidence as exhibit 5 Inspite of raising specific objection by the defence and as such this was not in accordance with the provisions of Section 294(1) of Cr.PC. rather there was an infraction of the provision of Section 294 of Cr.PC and as such his findings that the injuries mentioned in the post mortem report taken together with oral evidence of P.W. 1 to 3 can safely be concluded that the victim expired due to assault by one single person cannot at all be accepted inasmuch as from the prosecution side, the doctor could not be brought before the Court. No explanation has also been offered that why the doctor has not been brought befoie the Court. No steps was also taken from the side of the prosecution to adduce even any secondary evidence for bringing in the post mortem report in evidence before the Court.
32. Even in a situation like this, the learned trial Court observed squarely that there are corroboration of the Injuries found by the doctor in post mortem examination with the ocular evidence of P.W. 1, P.W. 2 and P.W. 3 and upon such finding he accepted the prosecution version that the victim met the death due to assault by a single individual.
33. Now, upon agreeing with the contentions of learned counsel appearing for the appellant, I find that in the Instant case, the learned trial Judge was not at all justified in admitting post mortem report as exhibit in this case in terms of Section 294 of Cr.PC, and he was not also Justified in placing his reliance to accept the opinion given by the doctor in the post mortem report about the cause of the injuries or the effect of the Injuries or the dimension of the injuries found by the doctor as those cannot be regarded as substantive evidence in view of the bar of Section 60 of the Evidence Act. At best, as an extreme case, the factum of holding of the post mortem examination of the body, by the doctor on the date mentioned in the post mortem report, the Identification of the dead body before the doctor by the person claiming to have identified the dead body before the doctor as well as the existence of Injuries found by the doctor on examination over the dead body can only be 'read in evidence' even when the case is covered by Section 294(1) of Cr.PC. But, in the instant case, I have already found that the post mortem report was not taken into evidence in terms of Section 294(1) of Cr.PC, and in such event nothing could be 'read in evidence' with regard to the aforesaid post mortem report (exhibit 5). I am fortified to hold so in view of (he decisions reported in the case of June @ Arjun Mandi v. The State reported in 1986 C.Cr.L.R. Cal 138 and in the case of Vijender v. State of Delhi reported in 1997 Supreme Court Case (Cri) 857.
34. Thus being the position and in view of my findings as made above, I am of the clear view that upon assessing the ocular evidence available on record as adduced by P.W. 1 to P.W. 3, there is, however no sufficient materials or Ingredients to come to a definite finding with regard to the fact that it is the accused alone and none else was responsible for causing the death of the victim and in other words, there is nothing on record to show that it is the assault or bodily Injury caused by this accused upon the victim which has resulted in his ultimate death and there is no sufficient material and evidence on record to show that such bodily assault or injuries were inflicted upon the victim by this accused appellant alone with the Intention of causing such bodily injury and the appellant know it to be likely to cause death of that person in the ordinary course.
35. Thus being the position, hardly any conviction under Section 304 Part-II of IPC can be maintained and accordingly the conviction and sentence imposed upon this accused appellant by the learned trial Judge cannot be maintained and it, therefore, needs to be set aside.
36. Nevertheless, upon plain perusal of the oral evidence as adduced by P.W. 1, Balaram Routh, P.W. 2, Nandan Routh and P.W. 3, Guru Prosad Routh, I find there is an overwhelming evidence available on record to show that this accused appellant at least caused some assault by using fists, blows and kicks upon this victim before his death when he came to the place of occurrence being in intoxicated condition.
37. On the face of such evidence, I am of the clear opinion that although no conviction under Section 304 Part II of IPC can be maintained against this accused/appellant, yet, there are sufficient materials to convict him under Section 323 of IPC simpliciter and I am of further opinion that the ends of justice will be subserved if this accused/appellant is sentenced to suffer R.I. for 3 months only.
38. Accordingly, the order of conviction and sentence upon this accused appellant under Section 304 Part II of IPC are hereby set aside and the accused appellant is convicted under Section 323 of IPC and sentenced tc suffer R.I. for 3 months only. Accused/Appellant is also entitled to the set-off if any, for the period in detention.
The appeal is, thus, disposed of accordingly.
Let the lower Court records be sent down at once with a direction upon the concerned Sessions Judge to take Immediate steps to put this accused appellant in Jail for undergoing the sentence imposed on him by this Court in accordance with law.