Calcutta High Court (Appellete Side)
Sukdeep Singh @ Deepu vs State Of West Bengal on 11 June, 2009
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Kishore Kumar Prasad
C.R.A. No. 614 of 2006
Sukdeep Singh @ Deepu
Versus
State of West Bengal
W I T H
C.R.A. No. 610 of 2006
Nizal Akkara @ Viki
Versus
State of West Bengal
W I T H
C.R.A. No. 611 of 2006
Raju Dutta @ Honey
Versus
State of West Bengal
For the Appellant
In C.R.A. 614/2006 : Mr. Milan Mukherjee
Mr. Biswajit Manna
For the Appellant
In C.R.A. 610/2006 : Mr. Sekhar Kumar Basu
Mr. Joymalya Bagchi
Mr. Siladitya Banerjee
Mr. Joydeep Biswas
For the Appellant
In C.R.A. 611/2006 : Mr. Joymalya Bagchi
Ms. Anasuya Sinha
For the State : Mr. Asimes Goswami, Ld. Public Prosecutor
Mr. Aslam Khan
Mr. J. N. Chatterjee
Heard On: 07.05.2009, 19.05.2009 & 22.05.2009
Judgment On: 11.06.2009.
PRANAB KUMAR CHATTOPADHYAY, J.
The appellants herein have been convicted by the learned Additional Sessions Judge, 8th Fast Track Court, Calcutta in Sessions Trial No. 2(5) of 2001 arising out of Sessions Case No. 4 of 2001 under Sections 302/34, 364A/34 and 201/34 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 2000/-, in default, to suffer rigorous imprisonment for one year for each count of the offence punishable under Sections 364A/34 and 302/34 of the Indian Penal Code. No separate sentence was awarded for the offence punishable under Section 201/34 of the Indian Penal Code.
The sentences awarded to the appellants were ordered to run concurrently. Christopher Gomes @ Vikash was also tried in this case but the learned Trial Judge finding no tangible evidence against him to his satisfaction had, however, acquitted him of the offences under Sections 364A/302/201 read with Section 34 of I.P.C. charged against him. The said order of acquittal has attained finality as the State has not filed any appeal challenging the order of acquittal.
The background facts, in a nutshell, are as follows:
On 25th September, 2000, one Kishore Herawat, aged about 44 years, a businessman dealing in leather goods and residing at 55, Vivekananda Road, Kolkata - 6, left his house at about 11:00 A.M. for business purposes. His wife, Pushpa Herawat (P.W.1) received a phone call at about 1/1:30 P.M. from Kishore intimating her that he was in trouble and sought for help. Thereafter, a ransom of Rs. 25 lacs was demanded for the release of Kishore. P.W.1 did not have the requisite amount and she kept on receiving such calls at an interval of 15/30 minutes till 9:00 P.M. She was directed not to inform the matter to anyone or to the police. From 26th to 28th September, 2000, P.W.1 did not receive any call. On 29th September, 2000 at about 2:45 P.M. she received a call whereby the caller wanted to know how much money had been procured. P.W.1 informed that she could give only Rs. 15,000/-. The caller directed her to hand over the money in front of Birla Mandir and after that her husband would return. Accordingly, father (Nawaratan Mal Herawat) and mother (Chandrakanta Herawat) of Kishore (P.W.4 and P.W.5) went with the money to Birla Mandir. At 4:45 P.M. one person met them in front of Birla Mandir and took away the money contained in a packet and on enquiry stated that their son would come back. However, Kishore did not return.
Thereafter, on the night of 30th September, 2000, after consulting close relatives, wife of Kishore namely, P.W.1 informed the matter to Jorasanko Police Station where she narrated the entire statement vide Ext. 1/3 duly signed by her and recorded by S.I., K. K. Sharma. In view of the said complaint, G.D. Entry No. 50 dated 1.10.2000 was made and Jorasanko Police Station Case No. 359 dated 1.10.2000 was registered after filling up the formal F.I.R. On 9th October, 2000, P.W.1 once again received a call directing her to bring ransom in front of the main gate of Eden Gardens. After much persuasion, the amount was fixed at Rs. 25,000/-. P.W.4 informed Jorasanko Police Station and police informed him to proceed and that they would follow. In front of Eden Gardens when P.W.4 was talking to two persons the police apprehended them (during trial these two persons have been identified as Sukhdeep Singh and Raju Dutta) while two others fled away on a motorcycle. On 12th October, 2000, cousin of Kishore, Bimal Herawat came to know from Jorasanko Police Station that Kishore had been murdered and his deadbody had been recovered on 25.9.2000 by the police of Purba Jadavpur Police Station. On 26th September, 2000, post mortem examination had been conducted on the said dead body and it was lying at Kantapukur Morgue.
Relatives of Kishore identified the body and thereafter the same was handed over to them.
Investigation proceeded and on the basis of the statement of Raju Dutta, three mobile phones and a motor cycle were recovered from a house in Alipore and one person, Sreejit Audy was taken into custody. Subsequently, on 30th December, 2000, Nizal Akkara was arrested in connection with a case under Section 392/397 I.P.C. by Jorasanko Police Station and therafter, he was shown arrested in connection with the present case.
Charge sheet was submitted finally against six persons including the appellants herein namely, Nizal Akkara, Raju Dutta, Sukhdeep Singh, Sreejit Audy, Christopher Gomes and Nepali Babu. (Christopher Gomes and Nepali Babu were shown as absconders).
Charges were framed under Section 364A/302/201/34 of Indian Penal Code against Nizal Akkara, Raju Dutta and Sukhdeep Singh while Sreejit Audy was discharged. Subsequently, when the trial had proceeded, Christopher Gomes was arrested and charges under Sections 364A/302/201/34 of I.P.C. were framed against him and he was also put on trial.
In course of trial, the prosecution examined 25 witnesses and also tendered and proved a large number of Exhibits as per Exhibit list, which were marked as Exhibit 1 to 20 and Mat Exts. I to IV.
After prosecution concluded its evidence, each of the accused persons was examined under Section 313 Cr.P.C. with reference to the evidence on record in order to enable them to explain the circumstances and other materials emerged in the evidence against them. The accused persons did not adduce any oral evidence in support of their plea of innocence. The defence exhibited some documents which were marked as Exts. A to C. After conclusion of the trial, on 31st July, 2006 learned Trial Judge held the appellants herein guilty under Sections 364A/302/201/34 I.P.C. and convicted them accordingly. On 1st August, 2006, after hearing the convicts, namely, the appellants herein, the learned Trial Judge sentenced each of the three convicts, namely, Sukdeep Singh @ Deepu, Raju Dutta @ Honey and Nizal Akkara @ Viki to suffer rigorous imprisonment for life and to pay fine of Rs. 2000/-, in default, to suffer rigorous imprisonment for one year for each count of the offence punishable under Sections 364A/34 and 302/34 of the Indian Penal Code.
Being aggrieved and dissatisfied by the aforesaid judgment and orders of conviction and sentence, Nizal Akkara @ Viki preferred Criminal Appeal No. 610 of 2006, Raju Dutta @ Honey preferred Criminal Appeal No. 611 of 2006 and Sukdeep Singh @ Deepu preferred Criminal Appeal No. 614 of 2006. Since the aforesaid three appeals arise out of the common judgment passed by the learned Trial Judge, the same were heard analogously and we dispose of the aforesaid appeals by this common judgment, which will govern the fate of all the three appellants.
The prosecution case was registered on the basis of the statement made by Pushpa Herawat (P.W.1) to the Jorasanko Police Station on 30th September, 2000. We are now to examine and analyse the prosecution case in order to decide whether the said prosecution has been able to establish the charges against the appellants herein beyond all reasonable doubt on the basis of the evidence on record.
Mr. Sekhar Basu, learned Senior Counsel advanced the main arguments on behalf of the appellants. Mr. Milan Mukherjee and Mr. Joymalya Bagchi also argued on behalf of the appellants. Mr. Asimes Goswani, learned Public Prosecutor represented the State.
It has been submitted by the learned Counsel representing the appellants that serious infirmities and contradictions have not been properly appreciated and/or considered by the learned Trial court while deciding the fate of the appellants.
Going through the F.I.R. and also considering the facts which emerged during the trial, we find that on 25th September, 2000 at about 11:00 A.M., victim, Kishore Herawat left his residence for business purposes. It has also been disclosed that at about 1/1:30 P.M. on the same day his wife, Pushpa Herawat (P.W.1) received a telephone call from her husband when she was informed by her said husband that he was in trouble and also sought for help to get rid of it. Immediately thereafter one unknown person took over the said telephone from her husband and through the same call informed the said P.W.1 that her husband, Kishore was in their custody and in order to save his life demanded Rs. 25 lakhs. P.W.1 was also threatened at the same time by the said unknown caller not to disclose the aforesaid incident to the police otherwise her husband would be killed. According to P.W.1, such calls continued at an interval of 15/30 minutes on that day till 9:00 P.M. The P.W.1 in her evidence specifically stated that she did not receive any call on 26th September, 27th September and 28th September, 2000 from the side of her husband and at the same time, also deposed that on 26th September and 27th September, 2000 received some telephonic calls in the voice of the same unknown caller who talked earlier. The relevant portion of the recorded deposition of P.W.1 is set out hereunder:
"On 26.9, 27.9 and 28.9.00 I did not receive any phone from the side of my husband. My husband had a mobile phone. I tried to contact my husband through mobile phone. But all the time I received the response 'switch off'.
However, on 26.9 and 27.9.00 I received some telephonic calls. The same voice talked to me "kitna rupia bandbost kiya". I replied to him that I have not been able to arrange for money........................"
The said P.W.1 in her evidence also stated that on 28th September, 2000 she could manage Rs. 15,000/- through her relative, Mr. Ranjit Dugar (P.W.7). On 29th September, 2000 in response to a similar call, said P.W.1 agreed to pay said sum of Rs. 15,000/- which she could procure and pursuant to the direction of the unknown caller sent her parents-in-law, namely, P.W.4 and P.W.5 to Birla Mandir, Calcutta to hand over the money and as a matter of fact, said P.W.4 and P.W.5 handed over the money to an unknown person who came to collect the same with the expectation that her husband would be released. Since her husband did not return, P.W.1 in consultation with the close relations lodged the F.I.R. with the Jorasanko Police Station.
It has been submitted by the learned Senior Counsel representing the appellants that the P.W.1, most surprisingly, lodged missing information with the Jorasanko Police Station on 30th September, 2000 even after realising that her husband was kidnapped on 25th September, 2000 and in spite of payment of ransom he was not released by the kidnappers. However, we are unable to agree with the aforesaid submissions of the learned Senior Counsel of the appellants after going through the evidence of the P.W.1 and also after considering the information lodged by her at the Jorasanko Police Station which was reduced into writing by the officer of the said police station.
From the evidence of the relations of the victim, we find that the said victim had neither any friend nor enemy. P.W.1 categorically stated in her evidence:
" (Q) Have you got any idea about friends and
enemies of your husband?
(A) He had neither friends nor enemies."
The aforesaid evidence clearly indicates that the victim led a socially secluded life. However, the evidence of P.W.6 changes the colour of such prosecution case inasmuch as according to him, Kishore Herawat had many friends including the appellants who used to pay regular visits to his house. Therefore, the evidence of P.W.6, on one hand, and that of P.Ws. 1, 4 and 5 on the other hand give a contradictory picture regarding the social life of the victim.
Mr. Basu, learned Senior Counsel representing the appellants referring to the evidence on record submits that ransom calls were also received by P.W.7. The P.W.1, however, did not intimate about the aforesaid ransom calls to her parents or other family members except P.W.7, which according to the learned Senior Counsel of the appellants, is most surprising as on the earlier occasions, said P.W.1 and the victim had relied on the financial support of the father of the P.W.1. The P.W.4 in his deposition specifically stated:
"...........................One year before his death, my son started dealing in leather bags. I could not help my son financially, but his father-in-law gave him Rs. 50,000/- to start the said new business........................"
In the present case, it is most surprising that to save the life of the victim, P.W.1 did not approach her father for financial help. Furthermore, from the evidence of the second I.O., namely, P.W.25 we find that the callers did not call at the landline number of the victim, which is contradictory to the evidence of P.W.1 who claimed that call was received on the landline. There is also inconsistency in the version of the prosecution witness as to the manner in which ransom of Rs. 15,000/- was collected. P.W.1 claimed that the said money was obtained from P.W.7, which was, however, not corroborated by P.W.7.
From the evidence on record we also do not find that any information was given to the police as to the physical appearance of the persons who came at Birla Mandir to collect the ransom.
From the evidence of P.W.7 we find that he agreed to pay around Rs. 10,000/ to Rs. 15,000/- to the kidnappers which he contradicted subsequently by saying that he had informed the caller that he was not in a position to pay Rs. 10,000/- or Rs. 15,000/- as he had no capacity to pay such amount. The said P.W.7 also categorically stated in his evidence that his father-in-law did not take Rs.15,000/- from him although P.W.1 in her evidence stated that on 28th September, 2000 she could manage Rs. 15,000/- through her relative, Ranjit Dugar (P.W.7).
On examination of the evidence of P.W.7, we also find contradictory statements. During cross-examination, said P.W.7 stated that in the first half of 30th September, 2000, he made local enquiries for ascertaining the identity of the person who had lifted Kishore (victim). The aforesaid evidence seems to be absurd in view of the fact that according to the said P.W.7, he came to learn from the Durwan that on 25th September, 2000 at about 10:30 A.M., 2/3 boys came to the main gate of the residence of the victim and picked up the said victim in a taxi. Furthermore, the P.W.6 (son of the Durwan) who runs a Pan shop on the footpath adjacent to the residence of the victim specifically stated in his evidence that after 9/10 days he informed the said P.W.7 that the victim left with his friends in a taxi on 25th September, 2000. The said P.W.6 in his evidence specifically stated:
"...........................9/10 days later Kishore babu's Jijagi (Jamaibabu) [P.W.7] came and I told him that Kishore babu left with his friends in a taxi on 25/9/2000........................"
The complete silence of P.W.6 for 9/10 days with regard to this vital information and the inconsistent stance of P.W.7 as to the time when he came to know of this fact make their evidence highly unreliable on this score. Further, while P.W.6 merely says that the victim left with the appellants in a Taxi, P.W.7 says that it was reported to him that there was hot altercation between them. The identification of the appellants by P.W.6 is also doubtful. He did not attend the T.I. parade during investigation and identified the appellants in court. The explanation given by P.W.6 that he had seen the appellants earlier since they used to meet the victim is not supported by the evidence of the family members of the victim namely, P.Ws. 1, 4 and 5 who categorically claimed that the victim had no friends. Further, there is no investigation by the Investigating Officer as to the identity of the Taxi or the Taxi driver in which allegedly the appellants left with the victim.
Mr. Basu, learned Senior Counsel representing the appellants submits that the P.W.6 since runs a Pan shop for his livelihood, it is highly probable that the police can pressurise him to be a pocket witness.
The P.W.1 after a long lapse of period decided to lodge a complaint with the local police station after consultation with her relations and on 30th September, 2000 lodged a complaint with Jorasanko Police Station. Mr. Basu further submits that there is an unexplained delay between the receipt of information and draw up of the formal First Information Report by the Jorasanko Police Station. It appears that the information lodged by P.W.1 was received on 30th September, 2000 on 23:20 hrs. and the formal F.I.R. was drawn up on 1st October, 2000 at 14:30 hrs. It is the case of the prosecution that P.W.1 received a ransom call again on 9th October, 2000 for bringing Rs. 25,000/- at Eden Gardens at 4:00 P.M. P.W.5, however, in her examination-in-chief stated that on that day, amount of ransom claimed was Rs. 35,000/-. The aforesaid incident regarding demand of ransom call received on 9th October, 2000 was informed to P.W.23, the Investigating Officer, by P.W.4.
From the evidence on record we find that the said P.W.23 informed the Officer-in-charge and under the guidance of the said Officer-in-charge, a trap was made. The police contingent was divided into two groups. One group went to the residence of P.W.4 and followed him to Eden Gardens. The said P.W.4 was advised by the police to carry a packet with him resembling money. Another group took position at Eden Gardens. It has been stated by P.W.23 in his evidence that P.W.4 talked with two persons and gave a signal to them whereupon he apprehended the said persons. On the other hand, P.W.4 did not support the said version and stated during examination-in-chief that while he was talking with the two persons, plain cloth policemen came and apprehended the miscreants.
On examination of the evidence on record we find that no General Diary was lodged by the Investigating Officer with regard to receipt of information from P.W.4 regarding further demand of ransom. Further statement of P.W.4 was also not recorded prior to laying of trap.
For the aforementioned reasons, Mr. Basu submitted before this court that the appellants were apprehended elsewhere and the prosecution version of laying a trap for the apprehension of the miscreants namely, the appellants herein was concocted one.
From the evidence on record we also find that no General Diary was lodged about the despatch of two police personnel for laying the trap for apprehension of the miscreants. The Officer-in-charge of the police station, who supervised the laying of the trap for apprehending the miscreants, was also not examined. No seizure was effected of the bundle resembling cash which P.W.4 carried pursuant to the direction of the police personnel.
It also appears from the evidence of the prosecution witnesses that the miscreants namely, Sukdeep Singh @ Deepu and Raju Dutta @ Honey were arrested at a public place like Eden Gardens in the evening which is ordinarily visited by a large number of persons although no local person witnessing the arrest was examined. The arrest memo of the aforesaid two appellants clearly shows that no signature of any person of the locality was affixed as required by law. This fact along with the non-examination of the local witness evidencing the arrest of the appellants at Eden Gardens throw a serious doubt as to the fact whether the appellants were, in fact, arrested at Eden Gardens as claimed by the prosecution.
Mr. Basu, learned Senior Counsel of the appellants submits that no information was given to the family members of the aforesaid appellants with regard to their arrest on 9th October, 2000 at Eden Gardens as a result whereof the appellants had no legal representation before the learned Magistrate when they were produced from police custody on 10th October, 2000 which, according to the Mr. Basu, creates a shadow of mischief as to the circumstances in which the said appellants were arrested and produced before the learned Magistrate. Mr. Basu further submits that the aforesaid facts cast serious doubt regarding laying of any trap by the prosecution on 9th October, 2000 pursuant to which the appellants namely, Sukdeep Singh @ Deepu and Raju Dutta @ Honey were arrested at Eden Gardens. Mr. Basu also submits that the prosecution story of trap was concocted later on after the arrest of the said appellants.
We also find from the evidence of P.W.23 that the appellants Sukdeep Singh @ Deepu and Raju Dutta @ Honey were arrested on 10th October, 2000. T.I. parade of the said appellants were held on 16th November, 2000 i.e. after long 36 days of their detention. In this regard, evidence of P.W.4 is most relevant. P.W.4 in his evidence admits that he went for T.I. parade on three occasions. On the first occasion, he could not identify anyone. On the second occasion, he identified two persons and on the third occasion he identified another person. The relevant portion of the evidence of P.W.4 is quoted hereunder:
"I had to face three T.I. parades. At the first instance I could not identify any of the suspects. Second time I identified two of them and in the last parade I identified the other one."
P.W.4, in course of cross-examination, further stated as hereunder:
"...........................For the purpose of T.I. parade I visited two jails 5/6 times........................"
It is the specific case of the defence that the appellants had been shown to the witnesses before holding the T.I. parade. The version of P.W.4 is not supported by the materials on record. P.W.4 went for T.I. parade on 16th November, 2000 when he was able to identify Sukdeep Singh @ Deepu and failed to identify Raju Dutta @ Honey. Thereafter on 20th February, 2001 he again went to jail for the purpose of identification of the appellant Nizal Akkara @ Viki. If that is so, then we do not understand how P.W.4 could visit the jails on 5/6 occasions. The aforesaid evidence of P.W.4 throws serious doubt as to the proper identification of the appellants by the said P.W.4 during T.I. parade.
The P.W.5 claims to have gone for T.I. parade on two occasions and she also stated in her evidence that she failed to identify the suspects on the first occasion.
Surprisingly both P.W.4 and P.W.5 could not identify anyone of the suspects on the first occasion and the same reasonably supports the defence version that the appellants had been identified before holding the T.I. parade.
P.W.16, learned Judicial Magistrate who conducted T.I. parade of the appellants, Sukdeep Singh @ Deepu and Raju Dutta @ Honey admittedly, narrated the facts of the case to P.W.4 and during cross-examination the said Judicial Magistrate clearly stated that it was necessary to narrate the incident to the witnesses before holding T.I. parade.
It is the specific case of the defence that the T.I. parade of Nizal Akkara @ Viki was held not only after 46 days of his arrest but also the police held raid with him at different places while he was in the said police custody when he could be shown to the witnesses for the purpose of future identification. The P.W.25, Sub-Inspector of Police who was attached with the Homicide department of Detective Department at the relevant time in his evidence specifically stated:
"...........................I interrogated the accused Nizal Akkara and held raid with him at different places........................"
P.Ws. 4 and 5 did not tell the Investigating Officer as to the physical appearance of Nizal Akkara during their examination improbabilising his identification. Finally, both P.Ws. 4 and 5 have admitted that they failed to identify the suspect on the first occasion during T.I. parade.
The feature of the person who collected money on 29th September, 2000 was also not mentioned either in the 161 statement of the witnesses or in the F.I.R.
In the aforesaid background, we are to consider the reliability of the identification of the appellants in court by the prosecution witnesses.
Mr. Goswami, learned Public Prosecutor submitted before this court that the victim was taken away in a taxi by the accused and subsequently demanded ransom over telephone. However, we do not find any evidence regarding identification of the caller who demanded ransom over telephone. Mr. Goswami further submitted before this court that the accused appellant, Nizal Akkara @ Viki received ransom at Birla Mandir and was identified at T.I. parade and court by P.W.5.
We have already discussed that both P.W.4 and P.W.5 failed to identify anyone during T.I. parade at the first instance and furthermore, as discussed hereinbefore, there are several defects in conducting the T.I. parade, which cannot establish beyond all reasonable doubt that the said Nizal Akkara received the ransom at Birla Mandir from P.W.4. Admittedly, no diary was lodged till late night of 29th September, 2000 although the victim was abducted on 25th September, 2000 and repeated calls demanding ransom had been received by P.W.1. The delay in lodging the F.I.R. in the given circumstances of this case has not been satisfactorily explained.
The learned Public Prosecutor further submits that the accused appellants Sukdeep Singh @ Deepu and Raju Dutta @ Honey were caught red-handed by the police at Eden Gardens at the time of collecting second instalment of ransom and they had also been identified by the witnesses. We, however, fail to understand why no independent public witness was available while the said accused appellants, Sukdeep Singh @ Deepu and Raju Dutta @ Honey were caught red- handed by the police at a public place like Eden Gardens. Admittedly, no local witness evidencing the arrest was examined during the trial.
In analysing the evidence of P.W.6 with the description that he is the most important witness, no attention has been paid to the fact that there is a sea change in the colour and complexion of the prosecution case when the evidence of P.W.6 is evaluated with reference to the evidence of P.Ws. 1, 4 and
5. According to the relevant witnesses, the deceased led a socially secluded life. P.W.6 does not say so. Whatever P.W.6 states is not supported or corroborated by P.W.7, Ranjit Dugar, the brother-in-law of the deceased.
The learned Public Prosecutor also submits that the accused appellants were seen by P.W.6 (son of the Durwan and Pan shop owner) who took the victim in a taxi. The learned Public Prosecutor further submits that the said P.W.6 also identified all the accused persons.
P.W.6 used to reside in the ground floor of the premises in question with his father, who is the Durwan of the said premises. The said P.W.6 in his evidence claimed that he knew the entire Herawat family and also disclosed that the victim had many friends visiting him. P.W.6 in his evidence also stated that all the accused persons namely, the appellants herein with others came on 25th September, 2000 in a taxi and the victim left with them in the said taxi. The said P.W.6 saw the victim alive for the last time on 25th September, 2000 when the said victim left in a taxi with the accused persons namely, the appellants and other persons. Neither the wife of the victim (P.W.1) nor the parents of the victim (P.W.4 and P.W.5) enquired anything about the victim with the Durwan, namely the father of P.W.6 or even with P.W.6.
P.W.7, Ranjit Dugar, the brother-in-law of the victim (Jijaji) on 1st October, 2000 heard from the Durwan, Durwan's son (P.W.6) and a driver that on 25th September, 2000 there was hot altercation between Kishore and his known friends and thereafter, he was taken away from that place at about 11:00 A.M. P.W.7 during cross-examination stated that in the first half of 30th September, 2000, he made local enquiries for ascertaining the identity of the person who had lifted Kishore (victim) and subsequently, again stated that on 1st October, 2000 he heard from the Durwan, Durwan's son (P.W.6) and a driver that there was hot altercation between Kishore and his known friends. The P.W.6 in his evidence also stated that he disclosed the names of Sukdeep, Vicky, Vikash and Bablu who had taken the victim in a taxi on 25th September, 2000.
So, at least on 1st October, 2000 the brother-in-law of the victim, namely, P.W.7 came to know the names of the persons with whom the victim had hot altercations and ultimately, was taken away in a taxi. P.W.6, during cross- examination, stated as under:
"...........................I told Jamaibabu the names Sukdeep, Vicky, Vikash and Bablu. The day I was examined by the police for the first time I met Jamaibabu 2/3 hours before and then only I disclosed him for the first time the above names........................"
The P.W.7, in his cross-examination, stated:
"...........................On 1.10.2000 I heard from Durwan, Durwan's son and a driver that on 25.9.2000 there was hot altercation in between Kishore and his known friends and thereafter he was taken away from that place at about 11 A.M........................."
It is most surprising that P.W.6 even after witnessing hot altercation between the victim and so called friends and also disappearance of the said victim in a taxi with them did not consider it necessary to tell the same to any other person of the Herawat family. The said P.W.6 had a meeting with P.W.7 before meeting the police when he disclosed the names of the accused persons namely, Sukdeep, Vicky, Vikash and Bablu. In the event, P.W.6 understood anything wrong during the conversation of the accused persons with the victim then in all probability he would have disclosed the same of his own to the members of the Herawat family specially when the said P.W.6 did not see the victim after the aforesaid incident which took place on 25th September, 2000. The said P.W.6 admittedly, had meeting with P.W.7 just 2/3 hours before he was interrogated by the police. P.W.6, during cross-examination, specifically stated as hereunder:
"...........................I met Jijaji 2/3 hours before I met the police........................"
In the event, the said P.W.6 had described or disclosed the names of the accused persons who took the victim away in a taxi from the main gate of the residence of the victim then it is difficult to understand why the Investigating Officer while carrying on investigation did not proceed on the basis of the statement made by P.W.6 atleast on and from 1st October, 2000 to 9th October, 2000. P.W.6 also could not identify the photograph of the dead face of the victim in court and his identification of the accused persons in court is not free from doubt. The said P.W.6 could not identify the accused appellant, Nizal Akkara @ Viki and Raju Dutta @ Honey correctly.
In the aforesaid circumstances, it is very difficult to accept P.W.6 as reliable witness.
It is the case of the prosecution that the accused appellants before their adventure stayed in a hotel namely, at the Airport Guest House under fake names. P.W.21, an employee of the said Airport Guest House in his evidence stated that the police seized one Register and two Bill books from the said Guest House on 19th October, 2000 after preparing seizure list. Sushil Dhara, the Manager of the said Airport Guest House has not been examined in the instant case by the prosecution. Mr. Basu, learned Senior Counsel of the appellants submits that in the absence of the evidence of the Manager, there is hardly any material to show that the appellants indeed had stayed at Airport Guest House. Further, non- examination of Sushil Dhara demolishes the prosecution case in regard to the seizure of hotel register.
The examination of P.W.21, according to Mr. Basu, is of little consequence since there is nothing to establish by any documentary evidence that the said P.W.21 was an employee of the Airport Guest House. The said P.W.21 also never stated in his evidence that the seizure was pursuant to the statement made by the appellant, Raju Dutta.
Going through the evidence of P.W.21 we find that on 19th October, 2000 police officers went to the hotel and had seized one Register and two Bill books after preparing seizure list and the Manager, Sushil Dhara had signed in that seizure list as one of the witnesses. Non-examination of Sushil Dhara, therefore, damaged the prosecution case very badly with regard to the seizure of the hotel Register and Bill books. The said P.W.21, during cross-examination, stated:
"...........................At this stage I have got no document to prove that I am actually working in the hotel........................"
Therefore, due to non-examination of the Manager of the Airport Guest House, Sushil Dhara and in absence of production of proper document by P.W.21 to prove his engagement as an employee in the said Guest House and further in absence of proper materials to show that the appellants indeed had stayed at Airport Guest House, it is very difficult to accept the claim of the prosecution that the appellants had actually stayed at the said Airport Guest House under fake names during the period in question. P.W.21 was brought to court to speak about the stay of the accused persons at the Airport Guest House but the said P.W.21 was not asked to identify anyone of the accused persons. The Manager of the Guest House although attended the T.I. parade was also not examined in this case.
It is the further case of the prosecution that the handwriting of the accused appellant, Nizal Akkara in the seized hotel register has been confirmed by the handwriting expert after comparing the relevant entry in that register. Mere proof of the handwriting does not lend to the irresistible conclusion that the accused persons, using fake names, lodged themselves in the Airport Guest House.
In the case of Magan Bihari Lal vs. The State of Punjab reported in 1977 SCC (Cri) 313, P. N. Bhagwati, J., had occasion to consider the evidentiary value of expert opinion with regard to handwriting. In the aforesaid decision, P. N. Bhagwati, J., speaking for the Bench, observed:
"7...........................It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law........................"
From the evidence on record we also find that pursuant to the statement of the accused appellant, Raju Dutta, three mobile phones and one motor cycle were recovered from the possession of Srejit Audy, who was discharged by the learned Sessions Judge at the stage of framing of charge. The Investigating Agency also did not try to ascertain the ownership of the articles which were seized from the possession of said Srejit Audy.
The other important aspects of this case are the discovery and identification of the dead body and also the Post Mortem report.
From the evidence on record we find that P.W.9 was the person who first noticed the dead body on 25th September, 2000 at about 10:30 P.M. After seeing the dead body, P.W.9 went to Purba Jadavpur police station and gave written information regarding the discovery of such dead body. However, P.W.9 stated that he had put the date on such document as 23.9.2000. Another witness who noticed the dead body on 25th September, 2000 at about 10:30/11:00 P.M. was P.W.10 but at the time of trial, photograph of the deceased was neither shown to P.W.9 nor to P.W.10 for the purpose of identification. Further, it is also amazing that no photograph of the living person (i.e. Kishore Herawat) has been exhibited in order to compare the same with the photograph of the dead body to ascertain the identity.
It appears from the evidence of P.W.2, the official photographer that he had taken the photographs of the deceased on that very day i.e. on 25.9.2000 but such version is not corroborated by P.W.22 who stated that photographs of the deceased could not be taken on 25.9.2000 for non-availability of photographer and only on 26th September, 2000, P.W.22 requisitioned P.W.2 for the purpose of taking photographs of the deceased. It further appears from the evidence of P.W.11 that the said photographs were seized on 15th October, 2000 and the seizure list dated 15th October, 2000 indicates that against the column showing subject of the photographs, "unknown person has been mentioned".
Mr. Basu, learned Senior Counsel of the appellants submits that the identity of the deceased was ascertained on 11th October, 2000 and, therefore, seizure list dated 15th October, 2000 ought to have revealed the identity of the deceased. The seized photographs of the victim, however, indicate that the same were coloured photographs and according to P.W.2, the same were printed manually. Manual printing of coloured photographs is extremely difficult and if not impossible. Further, the photographs revealed that the same were taken during day time which does not find support from the evidence of P.W.2. who deposed to the effect that he had taken the photographs on 25th September, 2000 at about 10:30/11:00 P.M. It is not explained in the evidence why the photos and negatives were seized on 15.10.2000 when according to P.W.2, the photographs were printed manually without wasting of time.
P.W.23, the Sub-Inspector of Police in his evidence stated that the accused persons namely, Sukdeep Singh @ Deepu and Raju Dutta @ Honey were taken to Eastern Metropolitan Bypass pursuant to their statements made on 11th October, 2000 and the said accused persons, according to P.W.23, pointed out a place at Purba Diganta near Ruby General Hospital and said that they had thrown the dead body of Kishore Herawat (victim) at that place. Mr. Basu, learned Senior counsel of the appellants submits that the aforesaid piece of evidence cannot come within the purview of Section 27 of the Evidence Act since the dead body had already been recovered prior to making of such leading statement.
Further, P.W.23 did not verify with the help of Purba Jadavpur police station as to whether the said dead body was recovered from the very place which was allegedly shown by the accused persons.
It appears from the evidence of P.W.22 that after the recovery of the dead body, he sent message to all concerned including the Police Headquarters at Lalbazar. Assuming that such message was sent on 26th September, 2000, it does not appear that from the receiving end, i.e. Police Headquarters at Lalbazar, any action was taken to bring it to the notice of any of the Police station within its jurisdiction in Calcutta the message so received.
The First Information Report was drawn up at 2:30 P.M. of 30th September, 2000 and till 11th/12th October, 2000, Jorasanko Police Station had no knowledge about the dead body. The dead body at the morgue was identified by two persons namely, Bimal Herawat and P.W.7, Ranjit Dugar, the brother-in-law of the victim. Bimal Herawat was, however, not examined by the prosecution. P.W.7 is stated to have identified the dead body on 11th October, 2000 though P.W.1 stated that they have received information about the dead body on 12th October, 2000.
P.W.22, the Sub-Inspector of Purba Jadavpur Police Station seized shoes of the recovered dead body at about 2:50 A.M. on 26th September, 2000 and prepared a seizure list in respect thereof. P.W.12 is a witness to such seizure. Mr. Basu raised serious doubt regarding the seizure of the shoes on the following grounds:
a) the seized shoes were not shown to the relations of the deceased for the purpose of identification and this is really suspicious inasmuch as shoes are commodity of daily use and hence, the family members should have been in a position to identify the same if they were shown to them.
b) the size of the shoes was also not stated.
c) the inquest report does not indicate that the dead body was at all wearing a pair of shoes and such facts are also corroborated by the evidence of P.W.22 who stated that the inquest report does not reflect that the dead body had a pair of shoes on his feet.
With regard to Post Mortem report, very strong argument was advanced on behalf of the appellants.
Post Mortem report was prepared on 26th September, 2000 and thereafter, relating to the identity of the deceased, most surprisingly, some addition was made on 15th October, 2000. On 26th September, 2000, P.W.20 conducted post mortem on the dead body of Kishore Herawat and the report indicates that post mortem was conducted in respect of an unknown male person but the words "later on known as Kishore Herawat" had been incorporated in the post mortem report. However, prosecution has not provided with a plausible explanation for making such addition in the post mortem report which is a public document.
Mr. Basu, learned Senior counsel of the appellants submits that in order to cover up foul play the original Post Mortem report was not brought before the court and only the carbon copy was produced. A very strange part of evidence of P.W.22 is that on 12th October, 2000, said P.W.22 informed the name of the dead body to P.W.20 for the purpose of performing post mortem examination although the post mortem had already been held on 26th September, 2000 by the said P.W.20. Further, such version of P.W.22 is not corroborated by P.W.20 himself. Post mortem report indicates that stomach contain red fluid about 50 gms. but there is no indication of digested or undigested food although according to the evidence of P.Ws. 1, 4 and 5, Kishore had left his house on 25th September, 2000 at about 10:30/11:00 A.M. after taking his meal.
P.W.20 stated that death was due to the effect of gun shot injuries. In addition to this, he also found a ligature which according to said P.W.20 is manifestation of strangulation or hanging but he has not provided with such satisfactory explanation for such ligature. Throughout the length and breadth of the evidence of P.W.20, there is not a single whisper regarding the time of death of the deceased whose body was examined by him while conducting Post mortem examination.
Another aspect which creates serious doubt was with regard to the religion of the dead body which underwent Post Mortem examination by P.W.20. According to P.W.20, the foreskin was circumcised in respect of organ of generation and the same is generally a feature found in Muslim males. The relevant part of the evidence of P.W.20 is quoted hereunder:
"...........................The foreskin was circumcised in respect of organ of generation........................"
Various acts of P.W.23 and P.W.25 during course of investigation would emerge from their recorded evidence, which are highlighted hereinafter.
During cross-examination, P.W.23 stated:
"...........................I did not carry photograph of Kishore Herawat with me when I searched different hospitals........................"
The said P.W.23, during cross-examination, also stated as hereunder:
"...........................I did not seize the packet containing something resembling money at the spot when two of the accused persons were apprehended at Eden Gardens..................I did not collect any call chart regarding the telephone calls made to the house and to other relatives of Kishore Herawat by Kishore Herawat himself and other unknown persons.
The call chart could indicate whether such telephone calls were made or not..............................It is not a fact that the seized mobile phones and motor cycle had no nexus with this case. I did not try to verify as to who were the owners of those seized mobile phones. All information regarding Kishore Herawat and the demand of ransom money were communicated to relatives of Kishore Herawat through his wife. I did not verify as the truthfulness of the statement made by Puspa Herawat in the F.I.R. or to her other relatives. I did not thoroughly investigate as to true avocation of Kishore Herawat........................On 30.9.2000 Puspa Herawat gave missing information.................."
P.W.23 did not send any message with photograph of Kishore for his whereabouts at different police stations although missing information was given to the police station. P.W.23 also did not make any attempt to enquire from Lalbazar Missing Squad where information of discovery of dead body of Kishore was lodged by P.W.22. There is nothing to show that immediately after being apprehended Sukdeep Singh and Raju Dutta were interrogated in connection with the instant case. Although Sukdeep and Raju were allegedly apprehended on 9th October, 2000, P.W.23 made prayer for T.I. parade only on 22nd October, 2000 i.e. after a delay of 13 days. Ultimately, T.I. parade was held on 16th November, 2000 i.e. after a lapse of 36 days. Nizal Akkara was taken into custody in connection with this case on 5th January, 2001 and T.I. parade was held on 20th February, 2001 i.e. after a lapse of 46 days.
Another lapse in the process of investigation is indicated from the fact that there is no reflection as to the date, time and place when P.W.23 interrogated the relatives of Kishore Herawat.
P.W.25 has given an explanation that Rajmoni Pandey was almost blind and lost one of his leges and, therefore, it was not possible to bring him but on the contrary, P.W.6 (son of Rajmoni) stated that his father was still doing business. P.W.25 stated that the number of the caller was 9831104642 but he does not disclose the source of tracing such number. The call chart collected by P.W.25 does not create any evidentiary value because said P.W.25 did not disclose the source of such number or tried to establish the connection of such number with the present case. P.W.25 did not recover the mobile phones of the caller and the offending weapon. Furthermore, voice of the accused persons was not identified by P.W.1.
In the report of the T.I. parade and also in the evidence of the learned Magistrate who conducted the T.I. parade namely, P.W.16 we find that the said learned Magistrate narrated the incident relating to the case to the witnesses before holding the T.I. parade. During cross-examination, said P.W.16 stated:
"In my consideration, it is necessary to narrate the incident to the witnesses before holding T.I. Parade........................"
Why and under what circumstances such a peculiar course of action was adopted by the learned Magistrate while conducting the T.I. parade is not at all understood.
In this regard, the attention of the Hon'ble court had already been drawn to the fact that neither the P.W.1 nor the Investigating Officer or P.Ws. 4 and 5 described the appearance, features, age and complexion of either of the accused persons or any of the accused persons be it Nizal Akkara or Raju Dutta or Sukdeep Singh. With regard to Nizal, there is discrepancy as to what the witnesses stated before the Investigating Officer about the natural complexion of Nizal.
With regard to holding of T.I. parade after 36 days there is no explanation whatsoever. Raju Dutta was not identified by P.W.4 in court. Sukdeep's identification in court is hardly of any evidential importance owing to absence of statements made to the Investigating Officer by P.W.4 about his height, appearance, complexion etc. and also for unexplained delay in holding the T.I. parade.
The learned senior counsel representing the appellants referred to and relied on a decision of the Supreme Court in the case of Subash and Shiv Shankar vs. State of U.P. reported in AIR 1987 SC 1222. In the aforesaid decision, Hon'ble Supreme Court observed:
"8. Apart from this infirmity we further find that Shiv Shankar was not put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features.
9. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha I nor in their statements during investigation, the eye-witnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had 'sallow' complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Exhibit Kha 1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthu Swami v. State of Madras AIR 1954 SC 4, where an identification parade is held about 21/2 months after the occurrence it would not be safe to place reliance on the identification of the accused by the eye-
witnesses. In another case of Mohd. Abdul Hafeez v. State of Andhra Pradesh AIR 1983 SC 367 it was held that where the witnesses had not given any description of the accused in the First Information Report, their identification of the accused at the sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade."
Under similar circumstances, in the case of Hari Nath and another Vs. State of U.P. reported in AIR 1988 SC 345, Hon'ble Supreme Court held:
"8...........................If there is unexplained and unreasonable delay in putting up the accused persons for a test identification the delay by itself detracts from the credibility of the test.
* * * * * * * *
* * * * * * * *
12...........................The benefit of this regrettable and wholly unexplained lack of promptitude in holding the test identification, we are constrained to say enures to the appellants. The evidence of test identification lacks the requisite element of reassurance to support the conviction. A reasonable doubt arises."
Similar view was taken by the Supreme Court in the case of Rajesh Govind Jagesha vs. State of Maharashtra reported in 2000 Cri.L.J. 380. In the aforesaid decision, Sethi, J., speaking for the Bench, observed:
"5. Looking into the attending circumstances and the totality of the evidence produced in the Court, we are of the opinion that as the test identification parade regarding accused No. 2 was not conducted properly and suffered from unexplained delay, he is entitled to the benefit of doubt."
The aforesaid decisions of the Supreme Court are very much applicable in the facts of the present case.
It is the specific case of the prosecution that Sukdeep Singh @ Deepu and Raju Dutta @ Honey were caught red-handed by the police at Eden Gardens at the time of collecting second instalment of ransom on 9th October, 2000 and they were thereafter produced before D.C. (Central) and were also detained in the office of the said D.C. (Central). Surprisingly, no information was given to the family members of the aforesaid two accused persons with regard to their arrest on 9th October, 2000 as a result whereof, the appellants had no legal representation when they were produced before the learned Magistrate on 10th October, 2000. The learned Senior Counsel of the appellants submits that the aforesaid acts on the part of the police authorities are in clear violation of the directives of the Supreme Court in the case of D. K. Basu vs. State of West Bengal reported in 1997 SCC (Cri) 92. In the aforesaid decision, Supreme Court directed:
"35................................................................................................................1)..................... ..............................................................................................2)That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.........................................."
So far the prosecution case relating to the visit of the P.Ws. 4 and 5 to Birla Mandir for payment of ransom to the accused appellant Nizal Akkara and also acceptance of the said ransom by the accused appellant Nizal Akkara at Birla Mandir have not been established in view of the serious doubt emerging from the evidence of P.W.23 as we find from the evidence of said P.W.23 that on 30th September, 2000, P.W.1 lodged F.I.R. at Jorasanko Police station without disclosing the fact relating to the proper description about the physical appearance of the person who collected the alleged ransom at Birla Mandir from P.Ws. 4 and 5.
With respect to the learned Public Prosecutor, the facts and circumstances on which the defence had challenged the vary fabric of the prosecution case had not been answered and left unattended to. This is not a case where it can be said without any doubt that the prosecution has proved the case with regard to the place, time and the manner in which the offences are alleged to have been committed.
On analysing the evidence on record we do not find that the prosecution has been able to prove beyond all reasonable doubt that the victim (Kishore) was indeed killed by his abductors in the evening of 25th September, 2000 and, therefore, the findings of the learned Trial court in this regard cannot be supported on the basis of the evidence already on record.
The learned Senior Counsel of the appellants referred to and relied on a Division Bench judgment of this court in the case of Mamfru Chowdhury and Ors. vs. King Emperor reported in 1924 Calcutta 323 wherein Mookerjee, J., speaking for the Bench, made the following observations:
"...........................That evidence does not show that the incident alleged happened at the time, in the place and under the precise circumstances narrated on behalf of the prosecution. We cannot, in these circumstances, accept the recommendation of the Sessions Judge and dissent from the verdict of the majority of the jury."
The aforesaid decision is very much relevant in the facts of the present case.
This court cannot ignore the various infirmities and contradictions in the evidence of the prosecution witnesses as discussed hereinbefore including the defects in conducting the T.I. parade, identification of the accused persons, preparation of the Post Mortem report and subsequent addition to it and furthermore, identification of the dead body of the victim.
A serious doubt has been raised with regard to the identification of the dead body which was examined by the Doctor during post mortem and subsequently, handed over to the relations of the victim. P.W.20 in his evidence specifically stated that the foreskin of the dead body was circumcised in respect of organ of generation, which is generally found in the Muslim males. We also take serious exception for subsequent addition of words in the Post mortem report.
The post mortem report in respect of the dead body was prepared on 26th September, 2000 by the Doctor concerned. In the said post mortem report, it has been specifically recorded "unknown M, seems to be Hindu about 30 years, later on known as Kishore Hirawat". As mentioned earlier, till 11th/12th October, 2000, even Jorasanko Police station had no knowledge about the dead body of the victim and P.W.7 in his evidence stated that the dead body was identified on 11th October, 2000. Therefore, on 26th September, 2000 when the post mortem report was prepared by the Doctor, the identification of the dead body could not be known.
In the said post mortem report it has been, most surprisingly, mentioned that the unknown dead body was later on known as Kishore Herawat. So it was known atleast on or after 11th October, 2000. Therefore, after preparation of the post mortem report by the Doctor concerned on 26th September, 2000, some additions/alterations regarding identification of the dead body have been made which is not all permissible.
We take strong exception to the aforesaid subsequent addition of the words regarding identification of the dead body in the post mortem report, which is a vital piece of evidence in the present case.
Having regard to the facts and circumstances of this case as well as the evidence on record and also for the reasons discussed hereinbefore, we are of the opinion that the prosecution has not been able to prove the case against the appellants beyond reasonable doubt. Once the case is in the region of suspicion, the benefit of doubt will go in favour of the accused-appellants.
Accordingly, these appeals succeed and are allowed. The judgment and orders of conviction and sentence passed by the learned Trial Judge are set aside and the appellants are acquitted of the charges framed against them.
From the records we find that the appellants are now in jail. They are, therefore, directed to be released forthwith from custody, if not required to be detained in connection with any other case.
Lower court records with a copy of this judgment be sent down forthwith to the concerned court below for information and necessary action.
A copy of this judgment be also sent to the Superintendent of the concerned Correctional Home where the appellants are now under detention for information and necessary action.
Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned Counsel for the parties upon compliance with all formalities.
[PRANAB KUMAR CHATTOPADHYAY, J.] KISHORE KUMAR PRASAD, J.
I agree.
[KISHORE KUMAR PRASAD, J.]