Calcutta High Court
Ashoke Giri And Anr. vs State Of West Bengal on 17 March, 2004
Equivalent citations: (2004)2CALLT401(HC)
JUDGMENT S.K. Gupta, J.
1.his appeal has been preferred against the order of conviction passed under Section 304 part II/34 of the Indian Penal Code where by the learned Additional Sessions Judge, Midnapore in Sessions Trial Case No. XI of September, 1988 convicted the accused persons to undergo sentence of rigorous imprisonment for four years and to pay fine of Rs. 1,000/- each in default to Rigorous Imprisonment for two months each. Being aggrieved and dissatisfied with the said order of conviction, present appeal has been preferred.
2. The circumstances leading to the Sessions case is that on 29.05.1987 at about 8.15 a.m. a written complaint was submitted by one Subimal Kumar Giri to the O.C. Contai Police Station wherein he has stated that his uncle Abanti Kumar Giri had a Panbaroj near his house. As there was occasional theft for the last one year from the baroj so, Abanti's sons used to guard it with lathi and torch during the night. On 28.05.1987 at about 11.30 p.m. Abanti's sons Ghanashyam Giri and Ashoke Giri were guarding the said Baroj with lathi and torch in their hands. At that time they heard the sound of plucking of beatle leaves from inside. They saw a thief coming out through the western gate and immediately Ghanashyam Giri started assaulting the thief with lathi and shouted. Hearing that Ashoke Giri came there and found that the thief was an old lady and he could recognise her as Tarangint Pramanik, mother-in-law of Madhusudan Das of the neighbour in village. It could be seen at that time that there was bleeding from her head and hand. Some beatle leaves were also found in her possession and she was at that time crying. Ashoke then brought water and poured it over her face and head. In the mean time many villagers came to the place of occurrence. As there was no Doctor in the village, so the injured was taken to the Contai Hospital for treatment. But on her way she died. On the basis of the written complaint a specific case was started and investigation was done. During the investigation, witnesses were examined, the dead body was examined by the post mortem Doctor and some articles were seized. On completion of the investigation, charge sheet was submitted against both the accused persons under Section 302 IPC and the case was committed to the Court of Sessions. During trial charge under Section 302/34 IPC was framed against the accused persons. The said charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. Prosecution in all has examined ten witnesses to prove the charge. Defence has not adduced any evidence. Defence case, as it could be ascertained from the trend of the cross-examination as well as statements made under Section 313 Code of Criminal Procedure is that of Complete innocence and that out of caste rivalry they have been falsely implicated in this case. The learned Sessions Judge after considering the materials on record, was of the opinion that the prosecution had been able to prove that it was due to the acts of the accused persons that the deceased died. But instead of convicting the accused persons under Section 302/34 of the IPC he found it reasonable to convict them under Section 304 part 11/34 IPC. Against this order of conviction, present appeal has been preferred. It is to be seen as to whether the learned Sessions Judge, was justified in passing the said order of conviction or not.
3. I have already pointed out that prosecution in all has examined ten witnesses to prove its case. Admittedly there is a panbaroj of Abanti Giri who is the father of the present accused persons. In the FIR it has been stated that as theft was going on in that baroj so the sons of Abanti were guarding it in the night and in the process when the deceased was allegedly stealing the beatle leaves from that baroj at that time the accused persons caught hold of her and assaulted her and as a result of that she succumbed to her death. In order to establish the charge against the accused persons prosecution has examined ten witnesses. It will be very much relevant for the purpose of this case to look into the statements that have been made by the witnesses in connection with this case. So far as the PW 1 Subimal Kumar Giri is concerned it appears that he is the defacto complainant of this case. It is he, who on the next day of the incident lodged the FIR. But surprisingly in his evidence he has not corroborated the statements as made in the FIR. Simply he has stated on oath that on the night of incident hearing a noise he went to the place of occurrence and found Tarangini Pramanik lying in injured condition. He has specifically stated in his chief "she was unable to speak". He has also stated that many persons were present there excepting the two accused. This witness has stated that he came to know that Tarangini was assaulted by the sons of Abanti Giri when she came there to steal the beatle leaves. But nowhere he has stated as to from whom he heard about this thing. Surprisingly, although this witness materially deviated from his statement in the FIR, still the prosecution did not prefer to declare him as hostile. I shall discuss the evidence of this witness along with the other witnesses later on.
4. PW 2 is Atul Krishna Das, who simply stated that he found Tarangini lying dead with bleeding injuries on her person.
5. PW 3 is Sudhansu Sekhar De. This witness did not support the prosecution case and as such was declared hostile.
6. PW 4 is Subrata Kumar Das. This witness has stated that on the night of the incident he rushed to the place of occurrence and at that time accused Ghanashyam Giri was present there. According to this witness Ghanashyam confessed before him that when Tarangini came to the panbaroj for stealing beatle leaves at that time he murdered there. This witness has claimed that he found the injured in that panbaroj on that night and she told him that she did not enter the baroj for stealing purpose and instead she stated that the sons of Abanti Giri called him there to hand over some beatle leaves to her. This witness went further in saying that the victim told him that she was assaulted by the sons of Abanti Giri. In his cross-examination, this witness emphatically claimed that he stated to the Investigating Officer that Tarangini Pramanik disclosed to him that she was assaulted by the sons of Abanti Giri. In this connection it will be relevant for the purpose of this case if we look into the evidence of the PW 9 S.I. D. Sur, who is the Investigating Officer of this case. This PW 9 i.e. the Investigating Officer has clearly admitted in his evidence by saying "PW 4 Subrata Kumar Das did not say before me that Tarangini Pramanik disclosed to him that she was assaulted by the sons of Giri." That apart if we look into the evidence of the PW 4 then it will appear that he has stated that he found Tarangini in injured condition and at that time she was able to narrate the incident in detail. But if we look into the evidence of the PW 1, then it will appear that this witness stated in his examination-in-chief that Tarangini at that time was unable to speak. The evidence of the Doctor also clearly suggests that the injuries sustained by Tarangini were in all likelihood would cause instant death. As such, there is reason to believe that this PW 4 has exaggerated the things by claiming that Tarangini narrated the entire incident to him and gave a vivid description as to how the alleged offence took place. The claim of this PW 4 in this respect appears to be unbelievable in view of the statements of the other witnesses.
7. PW 5 is Sudhir Chandra Das. This witness has claimed that when he reached the place of occurrence he found Tarangini Pramanik in injured condition and she was asking water from her daughter. It is totally a new case. No other person has ever stated that the daughter of Tarangini was present in the place of occurrence. Had it been so, then suddenly she would have been cited as a witness in connection with this case by the Investigating Officer. This witness has further stated that Tarangini informed him and others that she was assaulted by the sons of Girl. But I have already pointed out that the evidence of the Doctor and the statement of the PW 1 suggests that Tarangini was then lying in an unconscious stage. So the evidence in this respect by this PW 5 appears to be unbelievable. Moreover, this witness has stated that he did not find the accused persons present there in the place of occurrence in that night. But the PW 4 Subrata Kumar Das has claimed that accused Ghanashyam confessed his guilt before him by saying that he murdered Tarangini when she entered into the baroj for stealing beatle leaves. If we believe the statement of the PW 5 that the accused were not present there, then in that event we are to disbelieve the statement of the PW 4 Subrata Kumar Das that accused Ghanashyam made an extra judicial confession before him in respect of the commission of the offence.
8. PW 6 is Dilip Kumar Poira. This witness has claimed that he heard from the villages that the victim was mercilessly assaulted by the sons of Abanti Giri. But at the same time he could not name the villagers from whom he heard this. This shows that the evidence of this PW is pure and simple hearsay evidence and it has got no value in the eye of law,
9. PW 7 is Khagendra Nath Das. He is the near relative of the deceased and he has identified the dead body at the time of inquest. His evidence is not very much relevant for the purpose of this case.
10. PW 8 is Chittaranjan Poira. This witness like the PW 4 Subrata. Kumar Das stated that reaching the place of occurrence on that night he found the victim in serious condition. According to this witness, accused Ghanashyam made an extra judicial confession before him and others admitting that he assaulted the victim causing injuries on her person. He has further stated that Tarangini informed him that the sons of Abanti called her there and assaulted her. But if we look into the evidence of PW 9 the Investigating Officer of this case then it will appear that he has stated in his statement under Section 161 Code of Criminal Procedure that when he came to the place of occurrence he found the injured in unconscious condition. If that is the position, then I have got no hesitation to hold that this witness has made exaggeration at the time of his deposition before the Court and made some statements which he did not make at the time of investigation. That apart although this witness claimed that PW 4 called accused Ghanashyam and that he made extra judicial confession, still from the evidence of the Investigating Officer it appears that he did not make any such statement at the time of investigation.
11. PW 9 is S.I. D. Surf who is the Investigating Officer of this case.
12. PW 10 is Dr. Ram Chandra Sahoo. He is the Doctor who conducted the Post Mortem Examination and found several injuries on the dead body. According to this Doctor he found at least five incised wound on the dead body of Tarangini which were caused by sharp cutting weapon like Tangi, Bhali and sword etc. He has categorically stated in his opinion that the injury number 6 to 9 were likely to cause instantaneous death of the injured. It is the admitted position that the deceased was a lady and aged about 80 years. As such, the evidence of this Doctor clearly nullifies the statement of the PW 4 and PW 8 to the effect that the deceased prior to her death stated before them it was the accused persons who actually caused her death.
13. Be that as it may, we have discussed the evidence that has been adduced in connection with this case. I have already pointed out that the PW 1 who is the defacto complainant of this case did not state in his evidence the fact which he has stated in the FIR. In fact this defacto complainant did not state anything direct against the accused persons and from his evidence it cannot be said that the accused persons were responsible for the death of the deceased. It appears from the judgment of the learned Court below that he relied on the statements as made in the body of the written complaint in order to come to a definite conclusion regarding the guilt of the accused persons. But it is the settled principle of law that FIR is not a substantive piece of evidence. It can be used for the purpose of contradiction or corroboration only. Unless and until the statements made in the FIR are corroborated by the maker of it by way of adducing evidence at the time of trial, the statements as made in the FIR cannot be considered in judging the guilt of an accused person. In this respect, I am of opinion that the learned Judge was not at all justified in placing his reliance on the statement made in the FIR which has not been corroborated by anybody.
14. That apart the learned Judge relied heavily on the statements of the PW 4 and PW 8. He has believed the statements of these witnesses to the effect that the victim prior to her death stated before those two witnesses regarding the persons who assaulted her. But I have already pointed out that these statements of the PWs are not at all believable as it has transpired from the evidence that when these witnesses came to the place of occurrence at that time the victim was lying unconscious. Moreover, the evidence of the Doctor clearly suggests that there was absolutely no possibility of survival of the victim at the time of the arrival of these witnesses to the spot as the Doctor was of the opinion that the nature of injuries were likely to cause instantaneous death of the victim. I fail to understand and to how and why the learned Court below did not take into consideration all these vital aspects.
15. Learned Court below further relied on the statements made by the PW 4 & PW 8 to the effect that accused Ghanashyam made an extra judicial confession before them. But I have already pointed out that from the evidence it appears that Ghanashyam was not on the spot when these two PWs came there. Moreover, the claim of this PW 4 that he called Ghanashyam does not find support from the evidence of the Investigating Officer who has stated in his evidence that this statement was not made before him at the time of investigation. It is the settled principle of law that extra judicial confession is a very weak piece of evidence and it should be looked into very cautiously and in absence of any corroborative evidence it will be always unsafe to rely upon such evidence for convicting an accused. I have already pointed out that their is reason to doubt the claim of these witnesses as regards the alleged extra judicial confession made by one of the accused. In this respect the learned advocate for the appellant cited decisions as reported in 1997 Supreme Court Cases (Cri) page 358 Jaspal Singh @ Pali v. State of Punjab and 1972 SCC (Crl) page 827 Rahim Beg and Anr. v. State of Uttar Pradesh. The learned advocate for the appellant further cited decision reported in 1974 SCC (Cri) page 530 State of Haryana v. Gurdial and Anr. in order to substantiate his claim that when there is contradictory version as regards the prosecution case then It is always open for the Court to disbelieve them. I have carefully considered those decisions, and from the materials on record it appears that there is room for doubt regarding the commission of the offence allegedly by the accused persons. Even if we for argument sake believe the statements of the PW 4 and PW 8 for a moment, then also we find that their statements are in respect of accused Ghanashyam only. So far as the other accused is concerned, there is practically no evidence whatsoever in this case in order to implicate him in the commission of the alleged offence. It appears from the trend of the evidence that prosecution wanted to prove that the accused persons assaulted the victim with lathi and as a result of that she died. But it appears from the evidence of the Doctor that there were number of injuries on the dead body and several serious incised wounds were there on the dead body of Tarangini. According to the Doctor those incised wounds could only be caused by sharp cutting weapons like sword etc. But It is nobody's case that the accused persons at that time had such type of weapons in their hands. No such weapon was also recovered at the time of Investigation. There is no explanation given by the Investigating Officer in this respect. So there is a cloud regarding the involvement of the present accused persons in connection with the alleged offence. I fail to understand as to how all these things could be Ignored by the learned Court below. It appears from the judgment, as passed by the learned Court below, that he tried to substantiate the involvement of the accused persons in connection with this offence, by assigning reasons of himself. The law has not given such an authority to the learned Court below. He is to base his decision upon the materials available from the record. He cannot pre-judge anything which is not in the record. In this respect the decision, as arrived by the learned Court below by putting forward his own reason, in my opinion, is not permissible in the eye of law. It is definitely unfortunate that an old lady had to die in such a manner. But that does not mean that for this reason only the accused persons would be convicted in absence of any clear cut evidence. The learned Court below justified his judgment by observing that it was not a fit case where the benefit of doubt should be given to the accused persons. According to him, 'reasonable doubt is not a doubt of a feeble mind'. He has observed that 'over devotion to the doctrine of benefit of doubt in many cases strangulates justice'. Without disputing this proposition, it must be said that at the same time the law requires that when there is absence of any evidence to connect the accused persons with the alleged offence, the accused persons are entitled to get that benefit and are entitled to be acquitted. It is the basic principle of criminal justice that a man cannot be convicted in absence of any cogent evidence. It is not permissible for a Court to show bravery by denying an accused benefit of doubt when in a given circumstance he is legally entitled to it. If that is done then that will certainly hit at the root of the basic principle of criminal justice system of our country. So far as the present case is concerned, I have got no hesitation to hold, that there is no reliable evidence to entangle the accused persons in connection with the offence in question. As such, I am of opinion that it is a fit case where it should be held that the prosecution has failed to prove the charge against the accused persons beyond any reasonable shadow of doubt and so they are entitled to be acquitted. The decision, as arrived by the learned Court below in this respect, appears to be improper and I think that the said decision is liable to be set aside.
16. Considering all these things, I am of opinion, that the prosecution has failed to prove the charge against the accused persons beyond any doubt and as such, they are entitled to be acquitted.
In the result the appeal succeeds. The order of conviction as passed by the learned Court below is set aside. The accused persons, if are in custody, be set at liberty at once if they are not wanted in any other case.
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