Calcutta High Court (Appellete Side)
Tapan Bauri vs The State Of West Bengal on 29 March, 2016
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No. 155 of 2003
Tapan Bauri
Vs.
The State of West Bengal
For the appellant : Mr. Samiran Mondal, Advocate
For the State : Mr. Sanjoy Banerjee, Advocate
Mr. Pawan Kr. Gupta, Advocate
Heard on : 07.12.2015, 08.01.2016, 11.01.2016 & 15.01.2016
Judgment on: 29.03.2016
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment, order of conviction and sentence dated February 27, 2003 passed in Sessions Trial No. 3(4) of 1993 arising out of Sessions Case No. 5(1) of 1993 by the Ld. Additional Sessions Judge, 2nd Court, Bankura convicting him for the commission of offence punishable under Section 304(II) of the Indian Penal Code (hereinafter referred to as IPC) and was sentencing him to suffer rigorous imprisonment for 10 years and also to pay fine of Rs. 10,000/- in default simple imprisonment for one year more with a direction to set off the period of detention during trial since his arrest from his substantial sentence while acquitting Budhan Bauri and Basudeb Bauri from the charge under Section 304/34 IPC as per provisions of Section 235(2) of the Code of Criminal Procedure (hereinafter referred as Cr.P.C).
The backdrop of the case of prosecution is discussed in a nutshell hereunder:
On October 8, 1992 at about 20.45 hours one telephonic information was received from the Ajoydha Gram Panchayat at the Bisnupur P.S. about quarrel between two brothers resulting in death of one of the brother named Bharat Bauri. PW 16, the then officer-in-charge of Bishnupur P.S. himself along with PW14 went there and found the dead body of Bharat Bauri lying within his compound. At the place of occurrence, PW10, brother of the victim, narrated facts of the incident to PW16 stating that on that day at about 5.00 p.m. there was a quarrel between the victim Bharat Bauri with another brother Basu Bauri, his two sons Tapan Bauri, Kharu Bauri and his son-in-law Budhan Bauri at the courtyard of his brother regarding a job matter in the Balikhad as his brother had scolded them for not going to Balikhad on that day. Being aggrieved Basu Bauri and his two sons and son-in-law Budhan began to abuse Bharat Bauri and when Bharat Bauri protested then Tapan Bauri struck Bharat Bauri on his right chest by a bamboo, as a result he lost his sense. On hearing cries when villagers rushed there appellant and his sons and son-in-law fled away therefrom. PW10 was informed by his Boudi, PW15 at Balikhad where he was working. He then rushed back to the house and found the victim lying unconscious in the courtyard. He then with the help of the villagers took the victim to the Bishnupur Hospital but he died on the way. He thereafter returned back and reported the matter at the Ajoydha Panchayat Office.
PW16 recorded the statement of PW10 and after recording the same read over and explained the contents of the statement to P.W.10 who then put his LTI in his presence. PW16 then sent the complaint to Bishnupur P.S. through PW12 for his starting a case and directed PW14 for taking of investigation.
On receipt of the above complaint, PW13 started Bishnupur P.S. Case No. 60/92 dated October 8, 1992 against Tapan Bauri, the appellant, Basudeb Bauri, Kharu Bauri and Budhan Bauri under Section 304 IPC.
PW14 made inquest over the dead body of the victim and sent the dead body to the Bishnupur Hospital morgue for post mortem examination and took up investigation of this case and on completion of investigation submitted a charge sheet being No. 34 dated November 20, 1992 under Section 304 IPC against the appellant Tapan Bauri, Basu Bauri, Kharu Bauri and Budhan Bauri.
Charge was framed on April 15, 1993 against the appellant Tapan Bauri, Basu Bauri, Kharu Bauri and Budhan Bauri and they were put to trial after they denied their involvement in the commission of the crime. Subsequently, it was detected that accused Swapan @ Kharu Bauri was a juvenile, so he was tried separately after framing a separate charge on January 7, 2001 against him for the offence punishable under Section 304 IPC read with Section 34 IPC [arising out of Sessions Case No. 5A(1) of 1993] which ultimately ended in acquittal on February 27, 2003.
Prosecution examined 16 witnesses and also produced and proved certain documents namely, FIR, inquest report, PM report, rough sketch map, seizure list etc. Thereafter on completion of trial and after examining the appellant Tapan Bauri, Basu Bauri and Budhan Bauri under Section 313 Cr.P.C. learned court below passed the impugned judgment.
It is submitted by the learned advocate appearing on behalf of the appellant that the case against the appellant was not proved beyond all reasonable doubt and the impugned order of conviction and sentence is not sustainable in law for the following reasons:-
According to the learned advocate appearing on behalf of the appellant there was inordinate delay in lodging of the F.I.R. and the said delay had not been explained and the time of recording of the statement [Ext.(3b)] was also not mentioned therein which casts a reasonable doubt about the prosecution case.
It is also submitted by the learned advocate appearing on behalf of the appellant that there was material discrepancies and contradictions in between the F.I.R. and the evidence of prosecution witnesses including the complainant which gave rise to serious doubt regarding the veracity of the prosecution story.
According to the learned advocate appearing on behalf of the appellant P.W.10, was not the witness to the occurrence and he claimed to have heard from P.W.15, wife of the deceased, but P.W.15 herself had no occasion to see the incident as at the relevant time she was cooking. So, statements of P.W.10 about the involvement of the appellant in the commission of the offence is based on hearsay evidence. According to him there was also no evidence led by the prosecution as to who dealt a fatal blow to the victim. Even P.W.15 had not specifically singled out the appellant to be the assailant who assaulted the victim by lathi.
It is also submitted by the learned advocate appearing on behalf of the appellant that the name of the assailants was not mentioned in the inquest report though the same was within the knowledge of the witnesses which casts a reasonable doubt about the involvement of the appellant in the commission of the alleged offence.
It is also submitted by the learned advocate appearing on behalf of the appellant that the evidence of P.W.11, the doctor, is not believable being tutored by the prosecution as he himself noted in the postmortem report that the death of the victim was accidental.
According to the learned Advocate for the appellant learned Court below did not take into consideration the aforesaid aspects of the matter for passing the impugned judgment and order of conviction and sentence.
Reliance is placed by the Ld. Advocate for the appellant on the decision of Debabrata Mondal and ors. Vs State of West Bengal reported in 2002 C Cr. LR(Cal) 543.
It is submitted by the learned advocate representing the state that this is not the case of circumstantial evidence but based on the evidence of eye witness, P.W.15, who witnessed the incident and reported the same to P.W.10 who then reported to the Panchayat members, P.W.7, P.W.8 and P.W.9, and also on the evidence of the doctor, P.W.11 who corroborated the injuries of the victim.
According to the learned advocate representing the state, case against the appellant was proved beyond all reasonable doubt.
Reliance is placed by the Ld. Advocate representing the State on the decisions of Sukhar v. State of Uttar Pradesh, reported in AIR 1999 Supreme Court 3883 and Vijay @ Chinee v. State of Madhya Pradesh, reported in (2010) 8 SCC 191.
We have considered the submissions advanced by the learned Counsels appearing for the respective parties and have given our thoughtful consideration to the evidence of the prosecution witnesses, the materials on record including the FIR, inquest report, P.M. report, rough sketch, seizure list, charge sheet, charges framed amongst other materials for examining the propriety of the impugned judgement.
The learned Court below took into consideration the evidences of P.W.15, wife of the victim,P.W.10,the complainant, P.W.7, P.W.8, P.W.9, the Panchayat members, as also the evidence of the doctor, P.W.11, to arrive at a conclusion that it was the appellant who caused death of the victim by assaulting him with a bamboo lathi on his chest and thereby committed an offence punishable under section 304 (II) I.P.C.
It was not in dispute that the victim Bharat Bauri died on October 8, 1992. It is evident from the evidence of the doctor as also the Ext.1 that during postmortem examination conducted on the dead body of the victim, P.W.11 (doctor) found abrasion 3''x 1½'' on the post part of left shoulder, oblique bruise mark 6'' x 2'' over the lower part of right side of chest wall, fracture of 4 to 8 ribs, laceration with blood in right chest cavity, right lung pale, large intestine lacerated, liver ruptured and pale and pleura was torn and in his opinion death was due to shock in case of multiple injuries along with rupture of liver which was ante-mortem in nature. According to P.W.11 death was completely homicidal in nature but he wrongly noted the result in the postmortem report (Ext.1) as accidental which was not correct. He was cross-examined by the defence on this score but his evidence remained unshaken. Under the circumstances there appears no reason to disbelieve the version of the doctor.
Regarding the above injuries it was the specific allegation of the prosecution that on the relevant date at about 5.00 p.m. there was a quarrel between the victim with his brother Basu Bauri, his sons Tapan Bauri, the appellant, Kharu Bauri and son-in-law Budhan Bauri at the courtyard of the victim over a job matter and then appellant struck victim on his chest by a bamboo resulting in his death. Though the defence had denied the happening of any such incident and had taken the plea of innocence and false implication.
According to the settled principle of law delay in lodging FIR is not necessarily fatal to the case of the prosecution and the court has to consider the effect of such delay taking into consideration the facts and circumstances of the case in the light of the totality of evidences. In the decision of Kanhaiya Lal & Ors. vs. State of Rajasthan, reported in (2013) 5 SCC 655, the Hon'ble Supreme Court took into consideration the facts and circumstances where mere delay in lodging the FIR was not fatal to the case of prosecution.
The above principles of law has already been discussed by us in the matter of Surai Murmu vs. State of West Bengal and ors. reported in (2015) 3 Cal LT 610 (HC).
In the instant case, it appears from the record that the same was initiated on the basis of the statements of P.W.10 recorded at the place of occurrence by the then officer-in-charge of the Bishnupur P.S. (P.W.16). As per the F.I.R, incident took place at about 17.00 hrs. and on getting the news of the same P.W.10 came to his house and saw the victim lying there. He then with the help of villagers taking the victim proceeded towards Bishnupur Hospital but on the way when victim expired he returned back to the house and went to inform the Panchayet members and then incident was reported to the P.S. from the Panchayet over phone. According to P.W.14, information about the incident was received at the P.S. at 20.45 hrs. and thereafter he along with P.W.16 went to Dharapat village where P.W.10 narrated the incident which was recorded and then forwarded to the P.S. It is evident from Ext.3(b) that the said statement was recorded at 22.45 hrs. and it was received at the P.S. at 23.55 hrs. Dharapat village is 9 k.m. from Bishnupur P.S., as evident from Ext.2. Considering the facts and circumstances in totality, we are of the opinion that the time gap in between the occurrence of incident and lodging of complaint to the police was not unreasonable. Therefore, the impugned judgment need not require our interference on the above ground.
Regarding non-mentioning of the name of any accused in the inquest report, we find from the record that PW14 made inquest over the dead body of the victim in presence of witnesses. It appears from Ext. 5, inquest report, that name of the assailant was not given therein. Be that as it may, the main purpose of holding inquest is to ascertain whether a person has died under the circumstances which were doubtful or an unnatural death and if so what is the cause of death. An inquest report is not a substantive piece of evidence. The non-mentioning of the names in the inquest report can at the most be said to be a lapse or incompetence on the part of the investigating officer. Mere absence of the name of the assailant in the inquest report is not fatal and no inference adverse to the prosecution could be drawn for the same. Therefore, our interference with the impugned judgment is not required on the above ground.
Regarding the question of discrepancy and contradiction in oral evidence, it is well settled that there are bound to be some discrepancies between the depositions of different witnesses when they speak on details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. But it has to be distinguished from contradiction. While minor discrepancy or variation in evidence will not make the prosecution case doubtful, contradiction in the statement of witness is fatal for the case. Reference may be made to the decision of State of Himachal Pradesh vs. Lekh Raj & Anr., reported in (2000) 1 SCC 247.
The above principles of law have been elaborately discussed by us in the Judgement delivered on November 23, 2015 in the matter of Illias Mondal & Anr. vs. State of West Bengal.(In re: CRA 810 OF 2013).
It is evident from [Ext.3 (b)]/FIR that P.W.10 was not the witness to the occurrence but he gathered his knowledge from P.W.15. So, his statements about the involvement of the appellant and others in the commission of the offence is based on hearsay evidence.
According to P.W.15 on the relevant day a trouble cropped up in between the victim on one hand and Tapan Bauri, the appellant, Basudeb Bauri, Kharu Bauri and Budhan Bauri on the other hand and they brought the victim towards his house by dragging and the suddenly victim fell down on the 'Uthan' of the house and then those four persons assaulted victim. Thereafter she rushed to Bali Khad and reported the matter to P.W.10 who came to the house and thereafter reported the matter to Chitta Dey, Kartick Ganguly and then Panchayet reported the matter to police. Admittedly Basudeb Bauri, Kharu Bauri and Budhan Bauri have already been acquitted from the charge of causing death of the victim and nothing was brought on record to show that the said order of acquittal was challenged by the State. Interestingly, P.W.15 reported to be the witness to the occurrence was not even cited as charge-sheet witness nor her statements were recorded under section 161 of the Code of Criminal Procedure for the reason best known to the prosecution. Moreover, she has not singled out the appellant to be the assailant who assaulted her husband by lathi, as claimed in the FIR [Ext.3 (b)]. There was also no evidence dealing with the fatal blow to her husband and/or about the use of any lathi in the commission of the alleged offence. During cross-examination she claimed that she raised alarm when her husband was brought by dragging but local people did not come as they were in the field. But at the same breath she admitted that at the relevant time when her husband was brought dragging, she was cooking and she did not hear the cry of her husband. She also claimed that she stated to the local people about the assault to her husband by the accused persons but on being asked she could not say the name of those persons. Save and except P.W.10 none also came to support the above claim of P.W.15. P.W.10 has also admitted during recording of his statements before court that he did not see who assaulted victim by what means. Complainant had claimed in the FIR [Ext.3 (b)] that his 'boudi' came to the Balikhad where he was working and narrated the incident and then he came to the house and saw his brother lying unconscious whereas during examination before court he deposed that on hearing hue and cry he rushed to the place of occurrence and found his brother lying unconscious.
Admittedly P.W.7, P.W.8 and P.W.9 are also not the witnesses to the occurrence and their knowledge about the incident in question was not based from any eye witness.
According to P.W.10 he rushed to Panchayat members and narrated the incident Kartik Ganguly, Shibu Dey and Tirthankar. Tirthankar has not been examined in this case. The above claim of the P.W.10 as also the complainant that he reported the incident to Kartick Ganguly did not find corroboration from Kartick Ganguly (P.W.9) as according to him, he heard about the incident from Chittaranjan Kar and Shibshankar Dey. According to Shibu Dey (P.W.7), on the relevant date at about 8/8.30 P.M. while he was in the surrounding of Ayodhya Anchal office for a party meeting, P.W.10 came and reported him in presence of Chittaranjan Kar, Sukdeb Bauri and others that his elder brother Bharat was murdered because of assault by the appellant whereas Chittaranjan Kar(P.W.8) has deposed that complainant came to his residence and reported that his elder brother Bharat was murdered being assaulted by the appellant. Sukdeb Bauri was also not examined by the prosecution. The above claim of P.W.7 and P.W.8 that P.W.10 told them that his elder brother Bharat was murdered because of assault by the appellant do not find corroboration from P.W.10 as nowhere P.W.10 had deposed that his elder brother Bharat was murdered because of assault by the appellant. Neither P.W.10 nor even P.W.15 had singled out the appellant. It also appears from Ext. 5, inquest report, that P.W.7 and P.W.8 were the witnesses to the inquest over the dead body of the victim and in column no.9 of the said report their opinion as to cause of death was recorded as due to assault by lathi, rod etc. but name of the assailant was not given there.
Furthermore, P.W.1 to P.W.6 though admitted the death of the victim but they could not say the cause of his death for which they were declared hostile by the prosecution and were cross-examined but that did not yield any fruitful result. Even P.W.10 was declared hostile by the prosecution as he did not fully support the case of the prosecution towards the involvement of the appellant in the commission of the alleged offence.
It is true that in view of the settled proposition of law the entire evidence of a hostile witness cannot be washed off the record rather it is admissible to use the evidence of that witness in so far as it supports the case of the prosecution. But in the case in hand there was no evidence on record that P.W.1 to P.W.6 witnessed the occurrence or had the knowledge about the cause of death of the victim and they suppressed the truth to save the appellant. Similarly, from the evidence of P.W.10, we find that in so far as the lodging of the FIR and death of the victim was concerned he supported the same but in so far as the involvement of the appellant and others was concerned he did not whisper anything and claimed that he did not see who assaulted whom by what means. It has already been discussed earlier that he was not the witness to the occurrence and he learnt about the incident from P.W.15, the wife of the victim but P.W.15 herself had not singled out the appellant to be the assailant of her husband nor there was any evidence who dealt the fatal blow to her husband and/or about the use of any lathi in the commission of the alleged offence.
Thus, we find vital contradictions in between the FIR and the evidences of the prosecution witnesses including the de facto complainant as also the P.W.15 which goes to the root of the prosecution case. Learned court below completely overlooked the vital contradictions and was, therefore, in error in ignoring the above aspect of the matter.
Therefore, considering the entire facts and circumstances together with the discussions and observations made hereinabove, we have no hesitation to come to the conclusion that prosecution has failed to prove the commission of offence by the appellant beyond reasonable doubt and as such the conviction of the appellant cannot be sustained.
In the decision of Sukhar v. State of Uttar Pradesh (supra), the statement of witness who came at the place of occurrence on hearing gun shot and found the injured lying there and injured told him as to who fired him was admissible in evidence but the facts and circumstances of the instant appeal was different altogether. In Vijay @ Chinee v. State of Madhya Pradesh (supra), the contradictions had no material bearing on the prosecution case but in this appeal contradictions were of such a nature which goes to the root of the case. So, none of the aforesaid decisions come as an aid to support the case of the prosecution.
We accordingly set aside the conviction and sentence of the appellant and acquit him of the charge levelled against him.
The appeal is allowed accordingly.
Copy of this judgement along with the lower court records be sent down to the trial court expeditiously.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Md. Mumtaz Khan, J.) I agree (Debasish Kar Gupta, J.)