Calcutta High Court (Appellete Side)
Raju Jaiswal & Ors vs The State Of West Bengal on 21 April, 2017
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. 116 of 2014
Raju Jaiswal & Ors.
Vs.
The State of West Bengal
For the appellants : Mr. Asish Sanyal, Ld. Sr. Advocate
Mr. Krishnendu Banerjee, Ld. Advocate
Mr. Nabhajit Prasad Basu, Ld. Advocate
For the State Md. Idrish, Ld. Advocate
: Mr. Ranabir Roy Chowdhury, Ld. Advocate
Heard on : 14.03.2017, 15.03.2017 & 16.03.2017
Judgment on: 21.04.2017.
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellants assailing the judgment and order of conviction and sentence dated January 29, 2014 and January 30, 2014 respectively passed by the Ld. Additional District and Sessions Judge, Fast Track 2nd Court, Bichar Bhavan, Kolkata in Sessions Trial No. 19 (4) 2013 arising out of Sessions Case No. 22 of 2009. By virtue of the impugned judgment appellants were convicted for commissioning of the offence punishable under Section 302/34 of the Indian Penal Code (hereinafter referred to as IPC) and were sentenced to suffer imprisonment for life and fine of Rs. 3000 each in default to suffer rigorous imprisonment for two years with a direction for set off under the provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) The prosecution case, in brief, is as follows:-
On August 22, 2008 at about 7 a.m., P.W.3 received one telephonic information from an unknown male person about lying of a person unconscious in front of a sweet meat shop "Brindaban Chhat" situated at 58 A, Jotindra Mohan Avenue, Kolkata. He diarized the said information in the GDE book (Ext.9) and thereafter, giving information to the officer-in-charge of Burtolla P.S. went to that place and found one male person aged about 35 years, height 5'6"(Approx), wearing ash coloured full pant, full sleeved checked yellowish shirt, blue vest was lying unconscious with severe bleeding injuries on his forehead and facial region. The identity of the said person could not be ascertained from the person present there. He then removed the victim to RG Kar Medical Collage and Hospital where he was declared brought dead at about 08.05 hours.
Preliminary investigation revealed that the victim was found loitering in the vicinity of the said sweet meat shop in the evening of August 21, 2008 around 17.30/18.00 hours under influence of liquor. Thereafter, he went off and again came there around 18.45/19.00 hours with severe bleeding injuries on his forehead and facial region and reportedly lay down on the footpath in front of the said sweetmeat shop.
P.W.15 held post mortem examination under the guidance of P.W.22 over the dead body of the victim and detected total 18 injuries out of which 13 injuries were detected after dissection and autopsy surgeon opined that the death was due to the effect of the injuries mentioned in the post mortem examination report and were ante mortem and homicidal in nature. Accordingly, he lodged the complaint (Ext. 13) at the Burtala P.S. On the basis of the above complaint, a Burtolla P.S. case No. 242 dated August 26, 2008 under Section 302/34 IPC was started against unknown person and case was endorsed to P.W.26 for investigation who then investigated the same. Thereafter, on September 1, 2008 he handed over the case diary to the homicide Section, D.D. Lalbazar and accordingly P.W.28 took up further investigation of this case and thereafter completion of investigation submitted charge sheet being No. 202/2008 dated November 21, 2008 against the appellants under Section 302/34 IPC.
Charge was framed on April 4, 2009 against the appellants under Section 302/34 IPC and after they denied their involvement in the crime, trial commenced.
Prosecution examined 27 witnesses and also produced and proved certain documents viz; the FIR, seizure list, GDE, photographs, inquest report, PM Report, TI parade, FSL report etc. and thereafter on completion of trial and after examination of the appellants under Section 313 Cr.P.C. the learned Trial Judge passed the impugned judgment.
It was submitted by Mr. Asish Sanyal, learned senior advocate appearing for the appellants that the impugned judgement and order of conviction and sentence are not sustainable in law as there were several contradictions of material dimension which demolishes the prosecution story. According to him, the manner of death as projected by the prosecution was not proved beyond doubt and the medical report also demolishes the case of the prosecution. According to Mr. Sanyal, the evidence of P.W.4, P.W.5 and P.W.8 are not credit worthy and reliable as they being the pocket witness of the police and being influenced by the police came forward only after 20/22 days claiming themselves as eyewitnesses of the incident in question. According to Mr. Sanyal, prosecution has failed to prove motive and common intention in causing the death of the victim by the appellants. According to Mr. Sanyal, prosecution has failed to prove the commission of the offence of murder by the appellants beyond all reasonable doubt.
Mr. Sanyal relied upon the decisions in the matter of Suresh and another Vs. State of U.P. reported in AIR 2001 SC 1344, Nand Kishore Vs. State of Madhya Pradesh reported in AIR 2011 SC 2775 and in the matter of Fazlul Haque @ Lalu Sk Vs. State of West Bengal reported in 2016 (1) CLJ (Cal) 156 in support of his submissions.
Mr. Rabanir Roy Chowdhury, learned advocate appearing for the state in reply to the submission of the learned counsel for the appellants could not draw our attention from the evidence and materials on record to take a different view.
We have considered the submissions of the learned advocate for the both sides. We have also given our thoughtful consideration to the evidence of prosecution witnesses and materials on record to consider the propriety of the impugned judgment.
The learned Court below took into consideration the evidences of P.W.4, P.W.5, P.W.6, P.W.7 and P.W.8 as also evidence of the doctor, P.W.11, who first attended the victim at the emergency Department of R.G. Kar Medical College and Hospital and declared him brought dead, P.M. doctors, P.W.15 and P.W.22 besides the evidences of the defacto-complainant, P.W.3, and the investigating officers P.W.26 and P.W.27, to arrive at a conclusion that it was the appellants who in furtherance of their common intention assaulted the victim causing injuries on his person resulting in his death and thereby committed an offence punishable under section 302/34 I.P.C.
It was evident from the evidence of the doctor, P.W.11, that on August 22, 2008 at 08.05 AM while he was on duty at the emergency Department of R.G. Kar Medical College and Hospital one unknown male patient was brought before him by P.W.3 for his treatment. He then examined the said patient and on examination he found that the patient was brought dead. Accordingly, he prepared the report (Ext.17) as also the death certificate (Ext.18) and recommended for postmortem of the said body. Admittedly, there was no note in his report whether any external injury was found in that body and/or there was any blood stain on any part of that body or on the wearing apparels. Admittedly, in course of examination before court no such photograph of the victim was shown to this witness for his identification.
From the evidence of P.W.15, it was evident that he conducted postmortem examination over the dead body of an unknown person aged about 35 years under direct supervision of P.W.22 and at the time of holding post mortem examination he found rigor mortis present all over the body and there were evidence of bleeding from mouth and nostrils and the wearing apparels were stained by dry blood and dirt at places. The dead body was identified before him by P.W.10. On examination P.W.15 found 05 externally visible injuries namely (1) abrasion 0.9'' x 0.5'' over the right side of forehead, placed obliquely 0.5'' above the right eye brow and 2.8'' right to the anterior mid line, (2) lacerated wounds 0.4'' x 0.3'' x scalp placed obliquely just over the medial end of right eye brow, (3) abrasion 1.4'' x 0.9'' over right side of the face placed obliquely 0.3''right to the lateral canthus of right eye, (4) bruise 5.3'' x 2'' over both eye lids of both eyes and intervening root of nose and (5) abrasion 0.6'' x 0.5'' over the tip of the left elbow.
After dissection P.W.15 found 13 injuries namely (1) Hematoma 5'' x 3'' over both sides of frontal region of scalp, (2) Hematoma 2'' x 2'' over left parieto temporal region of scalp, (3) Hematoma 3'' x 2.5'' over the middle occipital region of scalp, (4) Fissure fracture 0.9'' in length both tables of the occipital bone, (5) Subdural haemorrhage extensive in nature over both cerebral hemiscpheres and their under surfaces, (6) Haemorrhage within the brain stem, (7) Bruise 0.5'' x 0.4'' in the soft tissue of left side of the neck placed 2.5'' left to the anterior mid line and 1.2'' below the lower border of left lower jaw, (8) 3 bruises measuring 0.3'' x 0.3'', 0.3'' x 0.2'' and 0.2'' x 0.2'' respectively above downwards in the soft tissue of right side of the neck placed 0.5'' apart from each other over an area of 1.8'' x 0.9'' placed 3'' right to the anterior mid line and 0.7'' below the lower border of the right lower jaw, (9) Bruise 4'' x 3'' in the soft tissue of right side of the posterior chest wall overlying the right scapula, (10) Bruise 8'' x 3'' in the soft tissue of both sides of posterior abdominal wall overlying both illiac creasts, (11) Bruise 4'' x 2.5'' in the soft tissue of the back of left forearm overlying the lower portion of radius and ulna (left), (12) Bruise 3'' x 2'' in soft tissue of back of the right forearm overlying in the lower portion of the radius and ulna and (13) Bruise 2'' x 2'' in the soft tissue of dorsum of right hand overlying the carpal bones.
In opinion of the doctor death was due to effects of the above injuries which were ante mortem and homicidal in nature and that the said person died less than 18 hours of receipt of the body that is at 10.05 a.m. of August 22, 2008 and that further opinion, if any, to be given after receipt of FSL report. He also stated that the injuries which were found on the person of the deceased may be caused by fists, blows and kicks. According to him on September 26, 2008 he received one letter from P.W.27 informing that the said unknown dead body was of one Sanat Kahar. He was cross-examined by the defence and during cross- examination he admitted that during post mortem examination it was found that the said deceased consumed alcohol soon before his death and that abrasion may be caused due to fall on the ground of a drunken person. According to him all the injuries which were found on the person of the deceased may be caused due to fall on the blunt different type of surface again and again. From the trend of cross-examination it was evident that defence did not dispute or deny the injuries found on the person of the deceased nor the cause of his death. P.W.22 also stated that postmortem over the dead body of the deceased was conducted by P.W.15 under his guidance and supervision and he agreed with the findings and opinion.
Now the question arises how the dead victim sustained those injuries on his person resulting in his death and/or who caused his death and whether the evidence available on record only leads to one conclusion--- that is the guilt of the appellants.
Now let us go through the evidence and documents on record to see how far the prosecution had been successful to bring home the charge against the appellants beyond all reasonable doubt.
Admittedly, P.W.3 during his preliminary enquiry from the local people and adjoining shop owners could not ascertain the identity of the victim and/or the persons responsible for his death. Even P.W.26, the 1st I.O., also during investigation till September 1, 2008 could not ascertain the identity of the victim and/or the persons responsible for his death in spite of examining several persons of the locality. Only on September 18, 2008 one Champa Debi identified the dead body to be of her son Sanat Kahar and accordingly dead body was handed over to her.
According to P.W.27, the 2nd I.O., on September 2, 2008 he examined P.W.8 and recorded his statements under Section 161 Cr.P.C and thereafter went to the crossing of B.K. Pal Avenue and Gray Street near the office of Forward Block Party and examined local witnesses but they could not throw any light about the incident. On September 3, 2008 also he went there and examined local people but they also could not throw any light about the incident. On September 4, 2008 he again went to the crossing of B.K. Pal Avenue and Gray Street and examined Biswajit Das, Satyajit Manna and Biswajit Manna and recorded their statements and thereafter on September 5, 2008 he again went there and examined Kishore Jadav and Rajesh Sonkar and recorded their statements. On September 10, 2008 appellants Raju Jiswal @ Paltu, Riki Shaw and Amardeep Shaw were brought to Lalbazar, Homicide Squad DD and after interrogation they were arrested and forwarded to court with a prayer for P.C. which was granted till September 24, 2008.
On September 12, 2008 statements of P.W.4, P.W.5, Md. Nasim and Md. Afroz were recorded. On September 17, 2008 also P.W.27 examined local witnesses but they could not throw any light in connection with the case. On September 24, 2008 prayer for T.I.Parade of the above appellants were allowed. On September 30, 2008, T.I. Parade was held at Presidency Correctional Home in respect of appellants Raju Jiswal @ Paltu, Riki Shaw and Amardeep Shaw by P.W.19 and in that T.I. Parade P.W.8, Md. Afroz Alam and Md. Nasim attended as witnesses. On October 22, 2008 appellant Rakesh Shaw was arreste and he was remanded to PC. On November 6, 2008 appellant Bipin Shaw was apprehended and accordingly on November 15, 2008 P.W.19 held T.I. Parade in respect of Rakesh Shaw, Bipin Shaw and Amardeep Shaw in which P.W.4, P.W.5, P.W.8, Md. Afroz Alam and Md. Nasim attended as witnesses. Thereafter, on completion of investigation P.W.27 submitted charge sheet against the appellants.
P.W.6 had deposed that on August 21, 2008 at about 6.30 to 6.45 p.m. while he was at his auto spare parts shop 'Lok Nath Auto' at 60 Jotindra Mohan Avenue, Kolkata 700005 he saw the victim moving in front of his shop as well as in front of the shop named 'Brindaban Chhat' and on seeing it appear to him that he was a drunkard. After some time he saw the victim to sit on the footpath in front of the railing of the shop Brindaban Chat but thereafter he did not find the victim there. After one hour he saw the victim lying on the footpath on his chest in between Brindaban Chat Centre and Shani Temple. Subsequently, on the next day he came to learn from the neighbours as well as surrounding people that the victim expired. But during investigation he did not state to the police that on August 21, 2008 at about 6.30 to 6.45 a.m. he saw the victim moving in front of his shop. Similarly, P.W.7 had deposed that on August 21, 2008 at about 5.30 p.m. he saw the victim moving in front of his shop 'New Brindaban Chhat Centre' at 58A, Jotindra Mohan Avenue, Kolkata 700005 as well as in front of other neighbouring shop and on seeing the movement it seemed to him that he might be drunken. Thereafter he did not see the man but after about one hour he saw the victim lying on the footpath in front of his shop and the Shani Temple. On the next morning at about 5.30 a.m. when he came to open his shop he saw that man lying there in the same position. After about half an hour police came and took away the victim and at about 9 a.m. police came to him and told him that the victim died and recorded his statement.
According to P.W.4 on August 21, 2008 at about 6 p.m. while he along with P.W.5 were going towards BK Pal Avenue from Basta Patty and when reached near Forward Block Party Office and Netaji Statue situated on BK Paul Avenue then they saw a crowd and also saw the appellants were assaulting the victim by fist, blows and with their knees on his abdomen chest and face by fixing his head with the wall as the result the said victim fell down on the ground. Thereafter, appellants by assaulting the victim went away towards Basta Patty taking him. According to him they searched for the police but found no police there and accordingly they went away. According to him after 20/25 days from the said incident he saw the photograph of that boy in the daily newspaper "Aaj Kaal" and went to the Burtolla P.S. and narrated the incident. He identified the photograph of the victim (Ext. 7/1) and also identified the appellants in course of his examination before court. During cross-examination he admitted that there is a traffic police stand on the crossing of Gray Street and BK Paul Avenue and the said crossing area is usually busiest place. He also admitted there were several shops near the place where the incident in question took place. He denied that he was arrested by the police of Burtolla P.S. before the incident in question but admitted that after the said incident he was arrested by the police of Burtolla P.S. He also admitted that at the relevant time of assault 10/12 persons were present there. He also admitted that he did not state to I.O. that seeing the incident they searched for the police but did not find any police there. He also challenged by the defence that he did not go through that road on the relevant day and time for purchasing any article nor saw any incident of assault and has falsely implicated the accused persons/ appellants at the instruction of police and also identified them after their photographs were shown to him by the police to which he denied.
According to P.W.5, on August 21, 2008 at about 6 p.m. while he along with P.W.4 were going to BK Paul Avenue and when they reached at the crossing of Grey Street and BK Paul Avenue they saw gathering of some people. They then went there and found the appellants were assaulting the victim by fists, blows and kicks on his chest, abdomen and face fixing him on the wall and thereafter they took away that boy towards Basta Patty by assaulting. They then went away towards BK Paul Avenue. After 20/22 days he saw the photograph of the said person who was assaulted in the daily newspaper "Aaj kaal" and consulted with P.W.4 who also affirmed the same. He identified the photograph (Ext. 7/1) to be that person who was assaulted and also identified the appellants in course of his examination before court. He was cross-examined by the defence and during cross-examination he admitted that he neither went to the police nor made any attempt to meet with the police within the period from August 21, 2008 to September 11, 2008. He also admitted that there is a police traffic signal and police gumti at the crossing of BK Paul Avenue and Gray Street and it was a thickly populated area. He also admitted that he did not report about the said incident to anybody else before going to the P.S. He was challenged by the defence that on the relevant date and time he did not go to that area nor saw any incident of assault upon the victim by the accused persons and he identified the accused persons after their photographs were shown to him and as he being a pocket witness of the police deposed falsely against the accused persons to which did not agree.
According to P.W. 8 on August 21, 2008 about 6 p.m. while he was going to his customers place along the BK Paul Avenue by riding a motor cycle and reached at the crossing of BK Paul Avenue near the Forward Block Party Office and Doctor Roy's Clinic, then he saw there were gatherings on the footpath just by the side of the aforesaid Forward Block Party Office and Netaji Statue. On seeing the same he stopped there, parked his bike and went to the gathering and found the appellants were assaulting the victim with fists, blows and kicks on his face, chest and abdomen fixing him with the wall holding his throat and due to assault victim fell down on the footpath but these appellants continued assaulting him and there was bleeding from the nose of that man. They thereafter pulled him up from the footpath by holding his collar and took away towards Central Avenue and seeing this he left that place. Thereafter a lapse of 10/12 days when he went to take petrol for his motor cycle from a petrol pump situated at the crossing of Central Avenue and Grey Street and after taking petrol when he went to take tea from a near by tea stall he heard a discussion there that on August 22, 2008 in the morning police came there and took away the victim and he was declared brought dead at the hospital. Accordingly he went to Burtolla P.S. and narrated the incident. He also identified the appellants in course of his examination before court and and also Ext. 7/1, the photograph of the victim. He was cross-examined by the defence and during cross-examination he admitted that there is a police booth/Kiosk at the crossing of Central Avenue through which he was going on that day on the southern side of the said route. He also admitted that on the very date of incident he did not go to the local P.S. for giving information about the aforesaid incident of assault and that police did not take him to the police morgue for identification of the deceased. He was challenged by the defence that he did not see the incident at all nor he visited that place on the relevant date and time and identified the accused persons after their photographs were shown to him by the police to which he denied.
In the case at hand the learned Trial Judge has placed reliance mainly on the evidences of P.W.8 who had come forward for narrating the incident after 10/12 days and P.W.4 and P.W.5 who came forward for narrating the incident after 20/22 days. Admittedly none of the above witnesses (P.W.4, P.W.5 and P.W.8) reported the incident either to the P.S. or to the near by police on duty before going to the P.S. after a gap of more than 20/22 days. No reason has been assigned by them why they did not report the incident to the P.S. or other police personnel present on duty nearby the reported place of occurrence. There was also no evidence on record that they were threatened by the appellants and/or prevented by them from reporting the incident to the P.S. There is no evidence on record that they even disclosed the incident in question to any one prior to their examination by the investigating officer. They could keep such incident without disclosing to anyone, defies prudence and baffles commonsense. The genesis or the root cause of the incident is also not known. There is also nothing in the record to indicate that appellants had any motive and/or common intention to commit murder or to cause grievous injuries to the victim. In the circumstances, we conclude that the common intention of the appellants had not been established beyond reasonable doubt to cause death of the deceased.
Admittedly deceased was found in the drunken condition. According to P.W.4, P.W.5 and P.W.8 the reported incident took place at 6.00 PM whereas P.W.6 and P.W.7, nearby shop owners, saw the victim moving around near their shop around 5.30 PM /6.30 PM and then went away and after one hour he again came back on his own and lay down on the footpath in front of their shop. There was no whisper by either of them that the victim was shouting for help and/or that he was crying in pain. The reported eye witnesses are not the local persons and their residence are away from the reported place of occurrence. Admittedly, the reported place of occurrence is situated in a thickly populated area having several shops in the locality and also police posts situated there. Even the Traffic Constable, P.W.17, who was on duty at the crossing of Grey Street and B.K. Pal Avenue on the relevant date and time denied about happening of any such incident during his duty hours from 17.00 hrs. to 22.00 hrs. And as such he was declared hostile by the prosecution.
Admittedly neither P.W.3 who made preliminary inquiry with regard to the death of the victim and his identification nor P.W.26 or P.W.27, the 1st and 2nd I.O., could ascertain the cause of death of the victim in spite of making inquiry from the local people as well as the adjoining shop owner till September 18, 2008. P.W.27 also admitted that he examined several persons of the area but none could through any light over the incident and as such he did not record their statements under section 161 Cr.P.C. He, however, admitted that during investigation he examined Biswajit Das, Satyajit Manna, Biswajit Manna, Kishore Jadav, Rajesh Sonkar and recorded their statements under section 161 Cr.P.C. As per the report of T.I. Parade witnesses Md. Afroz Alam and Md. Nasim also attended the T.I. Parade on both days. But none of the above witnesses were examined by the prosecution for the reason best known to the prosecution.
Now having regard to the evidence of P.W.4, P.W.5 and P.W.8, we find their evidence are not beyond question. We have already observed when a witness after watching a serious offence did not report same to the police until he is called at the police station and more particularly when he was not otherwise prevented from making such disclosure, his evidence become suspicious. In our opinion none of the above witnesses can at all be relied upon.
Having considered the entire evidence before us, we are not satisfied about truthfulness of these 3 witnesses (P.W.4, P.W.5 and P.W.8) and their evidence leaves an element of doubt in our mind and, in our opinion, it would not be safe to maintain the conviction on the basis of that evidence.
In the result, we allow the appeal and set aside the impugned judgement and order of conviction and sentence passed by the learned Trial Judge and acquit the appellants of the charge levelled against them. If the detention of the appellants are not required in connection with any other case, they be set at liberty forthwith.
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, on priority basis.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)