Calcutta High Court (Appellete Side)
Jiten Sarkar Alias Jitendra Nath Sarkar vs The State Of West Bengal on 15 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 261 of 1996
C.R.R. 3253 of 1996
Jiten Sarkar alias Jitendra Nath Sarkar
-vs-
The State of West Bengal
For the appellant : Mr. Y.Z. Dastoor, Sr. Adv.
Mr. Prabir Majumder
Ms. Rupa Bandopadhyay
Mr. Sujoy Sarkar
For the State : Mr. Sudip Ghosh
Mr. Bitasok Banerjee
Heard on : 15.01.2018
Judgement on : 15.01.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 27.8.1996 passed by the learned Additional Sessions Judge, 2nd Court, Balurghat, Dakshin Dinajpur in Sessions Case No. 8 of 1995 (Sessions Trial No. 5 of 1996) convicting the appellant for commission of offence punishable under Sections 304 Part I of the Indian Penal Code and sentencing him to suffer R.I. for life and to pay a fine of Rs.2,000/-, in default to suffer R.I. for six months more.
Prosecution case as alleged against the appellant is to the effect that on 20.1.1994 at about 7 to 7.30 a.m the deceased Kamalesh Sarkar, Headmaster of Gopalganj Raghunath High School had been to the school with two labourers for effecting repairs and renovation of the said school with bamboos and other articles. At that time the accused persons assembled at the spot and there was a hot altercation between the parties. Thereupon, the appellant assaulted the victim Kamalesh with an axe on his head and other accused persons assaulted him with lathi and sabol causing various injuries on his person. Kamalesh sustained bleeding injuries and was removed to Barahar Public Health Centre and was subsequently removed to Balurghat hospital. Over the incident Bimal Chandra Bhattacharyya, P.W 1 lodged written complaint against the accused persons resulting in registration of Kumarganj P.S. Case No.16/94 dated 20.1.1994 under Sections 325/307/323/34 of the IPC. In the meantime the victim was removed to SSKM Hospital in Calcutta but unfortunately succumbed to his injuries 10/11 days after the occurrence. Post mortem of the victim was conducted and on the prayer of the investigating agency, section 302/34 was added to the array of charges. In conclusion of investigation, charge sheet was filed under section 302/34 IPC against the accused persons. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, 2nd court, Balurghat for trial and disposal. Charges were framed under Section 304/34 of the Indian Penal Code against the appellant and three other accused persons. The appellant and other accused persons pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 13 witnesses and exhibited a number of documents to prove its case.
The defence of the appellant was one of innocence and false implication. It was the specific defence of the appellant that the incident did not occur at the time, place and manner as proposed by the prosecution. In order to probabilise such plea, defence examined D.W 1 who exhibited document to show that the deceased had been suspended from his duties as a headmaster in the school and his dismissal had also been approved.
In conclusion of trial, the trial judge by judgment and order dated 27.8.1996 convicted and sentenced appellant as aforesaid. However, the other accused persons were acquitted of the charges levelled against them.
While the appellant had filed the present appeal, wife of the victim P.W 10 filed a revision petition being CRR 3253 of 1996 against the order of acquittal of the co-accused persons. Both the matters are taken up together for hearing.
Mr. Dastoor appearing with Mr. Majumder and Mr. Sarkar argued that the FIR is ante dated as there is seven days' delay in forwarding the FIR to the jurisdictional magistrate. Drawing my attention to the sketch map he argued that there are two places of occurrence noted therein which is not consistent with the version of the prosecution witnesses. It is also submitted that no blood stained earth was seized form the place of occurrence to probabilise the place of incident. He argued that evidence of P.W 9, the sole eye-witness, is most unreliable as he was examined by the police four days after the incident and had not even admitted to be an eye-witness in course of such examination. Other eye- witnesses did not support the prosecution case and, therefore, the appellant is liable to be acquitted.
On the other hand, Mr. Ghosh, learned lawyer appearing for the State submitted that of P.W. 9 is the most probable witness as he had been employed by the deceased to make repairing work in the school. His evidence should be taken as a whole and minor contradictions therein ought to be ignored. He denied that there was any delay in registration of FIR and submitted that no questions were put to the investigating officer to elicit the reasons for the delay in receipt of FIR by the jurisdictional magistrate. He submitted that the prosecution evidence taken as a whole clearly established that the appellant had assaulted the victim with an axe of his head which is supported by the medical evidence.
I have also perused the averments made in the revision petition praying for setting aside the order of acquittal of the other accused persons.
I have gone through the evidence on record and I find that in the FIR lodged with the police P.W.1, Bimal Chandra Bhattacharyya had named one Biswajit Saha, P.W.2 and Amarendra Nath Sinha Roy, P.W.8 as eyewitnesses of the incident. Both P.W.2 & P.W.8 did not support the prosecution case in court. P.W.2 claimed that he had no personal knowledge about the incident. While P.W.8 stated that he had heard from some persons that the victim had been murdered.
It is sad to note that although the aforesaid witnesses did not support the prosecution case, no steps were made by the prosecution to declare them hostile and cross-examine them with regard to their previous statements before the police officer. Such lapse on the part of the prosecution has been poignantly noted by the trial court. In spite of expressing dissatisfaction on such score, the trial court however, did not exercise its power under Section 165 of the Evidence Act to put questions to the said witnesses with regard to their previous statements, if any, to the police in order to test the veracity and truthfulness of such witnesses and elicit the truth in the matter. In the event, the trial court had exercised the aforesaid powers of posing appropriate questions to the aforesaid witnesses, the profile of the instant case may have been substantially different.
In my considered view, failure on the part of the prosecution to cross- examine the aforesaid witnesses to their previous statements and the indolence of the trial court to exercise its own powers under Sections 165 Cr.P.C to elicit the truth creates an yawning schism in the prosecution case which at the appellate stage and that too after a lapse of two decades is too difficult if not impossible to be bridge.
In the absence of support from the star witnesses namely P.W.2 & P.W. 8, the entire lot of salvaging the sinking ship of the prosecution fell on the shoulder of P.W.9 who claimed to be a labourer who had been employed by the deceased for making repairs in the school.
Let me examine the evidence of P.W.9 whether was successful in achieving such fact.
P.W.9 deposed that the deceased had engaged him as a day-labourer for cutting bomboo in the premises of Gopalganj Raghunath High School. At that time, the appellant Jiten Sarkar, Sankar Sarkar, Sankar Halder, Satyabrata Majumder and Dhiren Halder came there and attempted to assault him with a kural from the back. On seeing this he left the spot and proceeded towards the market. After sometimes he went back again along with his bhagnipati Prodhan Hasda. Then he corrected himself and stated that Prodhan Hasda had reached the spot before him. On reaching the spot, he found that the appellant was assaulting his bhagnipati Prohdhan Hasda with a kural. Manoj Kumar Saha raised objection and the appellant threatened to murder his bhagnipati. Deceased Kamalesh Sarkar came with a sabol and rope to the school. Then, he corrected himself and stated that the deceased was proceeding towards the school and at that time the appellant met him on the culvert to the south of the Gopalganj Raghunath High School and appellant assaulted Kamesh Sarkar on his head with a kural. After assaulting the appellant left the spot.
In cross-examination, the witness was confronted with his previous statement before the police. He denied that he did not state to I.O. that after his departure one of his relatives was assaulted by the appellant. He did not state to I.O. that he left the spot leaving the kural at the place. He did not state to I.O. that he heard Kamalesh who had been assaulted by the accused person with a kural. He did not state to I.O. that he had returned home leaving the spot.
Apart from P.W.9, P.W.1 the defacto-complainant has proved the first information report. He, however, admitted that he was not an eyewitness.
P.W.4 is the scribe, who proved the written complaint (Ext.1)/ P.W.10 is the wife of the victim and deposed that she was a schoolteacher of Patiram Vivekananda Girls High School. On 20.1.1994 she was engaged in organizing sports and games at her school and around 9.45 A.M. she received information through the Headmistress of the school that her husband Kamalesh Sarkar had been admitted in Balurghat Hospital with injuries on his person. She rushed to the Balurghat Hospital. On reaching there she learnt that some of the colleague teachers of his husband's school had assaulted her husband. She found her husband unconscious and he was not able to speak. She heard that the persons who carried her husband to hospital assaulted her husband. She also heard that they assaulted her husband with a kural. Doctor advised her to shift her husband to Calcutta. Accordingly, her husband was shifted to S.S.K.M. Hospital. Her husband survived there for 11 days and on the 12th day he expired.
In cross-examination, she stated that her husband was re-instated as the Headmaster in the school in 1986.
Other witnesses have not spoken anything in support of the prosecution case.
P.W.11 & 13 are the investigating officer in the instant case. P.W.13 drew up the formal first information report (Ext.5 & Ext.5/1). He visited the place of occurrence. He added Section 302 of Indian Penal Code after the death of victim. He prepared sketch map with index (Ext.6 & Ext.6/1). He collected injury report.
In cross-examination, he denied that he received the FIR long after the death of incident.
He examined Budhu Mardi, P.W. on 24.1.1994. He deposed that P.W.9 had stated to him that after his departure from the spot one of his relations was assaulted by the accused. He stated that he left the spot leaving a kural at the place of occurrence. He stated that later on he heard Kamalesh had been assaulted by the accused persons with a kural. He stated that he returned home after leaving the spot. He stated that accused persons had tried to assault him.
In view of the hapless state of the prosecution case, Mr. Ghosh has desperately sought to rely on the sole evidence of P.W.9 as an eyewitness of the incident. The assessment of the evidence of P.W.9 as a whole, particularly the contradiction in his evidence in court when compared with his earlier evidence to the police officer, I find that his presence when the deceased was assaulted by the appellant to be highly improbable. Although the said witness deposed in court that accused persons had initially tried to assault him with an axe from behind and on seeing this he had left the spot and subsequently upon returning to the spot he found the assaulted the victim, causing bleeding injuries on his person, in his statement to the I.O. he had stated that after leaving the place he had gone home and had later heard that the appellant had assaulted the victim. Hence, P.W.9 altered his status from a hearsay witness to an eyewitness during trial making it highly unsafe to rely on his version.
I am, however, unable to accept the submission of Mr. Dastoor that prosecution case is liable to be disbelieved on the ground that of delay in receipt of the first information report by the jurisdictional magistrate. Evidence of the first informant (P.W.1) and the scribe (P.W.4) when read with that of P.W.13, the investigating officer, who received the F.I.R., clearly shows that the first information report was received at the police station on the date of occurrence itself. There may be various reasons for the delay in sending the first information report to the magistrate. No question was posed to the investigating officer, P.W.13 with regard to the delay and the mere suggestion that the first information report was ante-dated was denied by the said witness. Although P.W.9 cannot be treated as an eyewitness in the instant case, his version that he had been employed by the victim to cut the bamboos in the school on the date of occurrence probabilises the presence of the victim in the school at the time occurrence. However, the death knell of the prosecution case is sounded by the refusal of P.W.2 and P.W.8 the purported eyewitnesses to support its case. No steps were taken by the prosecution to declare them hostile and cross-examine them and the trial court also did not exercise its powers to pose questions under Section 165 Cr.P.C. to test the veracity of their version and elicit the truth. P.W.9 who claimed to be the eyewitness in the course of trial does not appear to be so when his deposition is compared to his earlier version before the court.
I am conscious that a moral conviction of guilt is not sufficient to substitute the same as a legal one. Hence, I have no other alternative but to record an order of acquittal due to the absence of legally the admissible evidence connecting the appellant with the murder of the victim.
In view of the aforesaid discussion, the revision petition filed by the wife of the victim is liable to the dismissed. P.W.9 does not appear to be an eyewitness. There is no other evidence connecting the acquitted accused persons with the alleged offence. Hence, I am of the opinion that no worthwhile purpose would be served to remand the matter for retrial and that too after a lapse of more than two decades.
I, however, observe that in view of the indolent manner the prosecution had conducted the trial. I may have been tempted to take an alternative course in the event the appeal and the revision petition were heard by this court at an early date.
The appeal is, accordingly, allowed and the revision petition stands dismissed.
The appellant shall be discharged from his bail bond after six months in terms of Section 437A of the Code of Criminal Procedure.
Let a copy of the judgment along with the lower court records be sent down to the trial court at once.
Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) tkm/rkd