Calcutta High Court (Appellete Side)
Dilip Banerjee @ Hatkhata Dilip vs State Of West Bengal on 3 August, 2011
Author: Ashim Kumar Roy
Bench: J. N. Patel, Ashim Kumar Roy
1
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Chief Justice Mr. J. N. Patel
And
The Hon'ble Mr. Justice Ashim Kumar Roy
C.R.A. NO. 2 of 2007
Dilip Banerjee @ Hatkhata Dilip
Versus
State of West Bengal
With
C.R.A. No. 832 of 2006
Raju Biswas
Versus
State of West Bengal
With
C.R.A. No. 848 of 2006
Saheb Mondal
Versus
State of West Bengal
With
C.R.A. No. 849 of 2006
Anup Bera
Versus
State of West Bengal
For the Appellant : Mr. Sekhar Kr. Basu
Mr. Sandipan Ganguly
2
Mr. Saubhik Mitra
Mr. Rajdeep Majumder
Mr. Santanu Chattopadhyay
...(In CRA No. 2/07)
For the Appellant : Mr. Sekhar Kr. Basu
Mr. Rajdeep Majumder
Mr. Rajib Lochan Chakraborty
... (In CRA No. 832/06)
For the Appellant : Mr. Sudipto Moitra
Mr. Rajdeep Majumder
... (In CRA No. 848/06 & CRA No. 849/06)
For State : Mr. Siladitya Sanyal
Mr. Navanil De
Heard on: July 4th, July 5th & July 11th, 2011.
Judgment on: 03-08-2011
ASHIM KUMAR ROY, J.:
The order of conviction and sentence passed by the learned Additional Sessions Judge, Barrackpore in a Sessions trial convicting Dilip Banerjee @ Hatkata Dilip, Anup Bera, Saheb Mondal @ Kartick and Raju Biswas under
Sections 302/34 of the Indian Penal Code and sentencing them thereunder to suffer imprisonment for life and to pay a fine of Rs. 5,000/- each, in default to suffer simple imprisonment for a further period of one year, is under challenged in the aforesaid four criminal appeals.
Since all the aforesaid appeals are arising out of the selfsame judgement and order of conviction and sentence, those appeals are taken up for hearing together and are disposed of by this common judgement. 3
2. In the trial besides the aforesaid four appellants 13 others were charged under Section 302/34 of the Indian Penal Code as well as under Section 302/34/109 of the Indian Penal Code for committing murder of Anil Pramanik and Mithun Sheikh. Five other accuseds were also separately charged under Sections 212/120B of the Indian Penal Code for harbouring the convict Dilip Banerjee @ Hatkata Dilip knowing that he has committed an offence punishable under Section 302 of the Indian Penal Code. The four other accuseds, viz. Tumpa @ Suparna Adhikary @ Laila, Sadhan Das, Om Prakash Singh and Biman Dey, who were charged under Section 302/34 of the Indian Penal Code were also charged under Section 212 of the Indian Penal Code.
However, except the aforesaid four appellants all others were acquitted in the trial of all the charges brought against them.
3. The prosecution case as unfolded in brief is as follows;
On the occasion of Ultarath Mela on June 27, 2004 at night a cultural programme was organized at the Naya Patti Rathtala Ground. There was some disturbance at the function during midnight and in course of such disturbance there was firing. The complainant Netai Pramanik who was watching a T.V. in the clubroom situated near the Mela Ground found the public were running to and fro and on enquiry came to learn that a few miscreants open fire and in such firing his Bhagni Jamai Anil Pramanik of Naya Patti Purbapara died sustaining gun shot injury and another person was also seriously injured due to gunshot. He also came to learn the organizer of the function, viz. Saheb Mondal, Kelo, Anup, Ganesh Halder, Dilip Bera, Saheb's brother Chinu brought 4 from Lake Town Hatkata Dilip, his brother, Tarak Kundu, a girl Swapna and 5/6 others in the function. The said girl was consuming liquor with the boys and dancing in obscene manner in the audience. When the members of the public in the audience raised protest, some scuffle took place between Dilip, Saheb and their associates in one side and the members of the public in another. He further came to learn that the accuseds Saheb Mondal, Hatkata Dilip and their associates opened fire from the firearms they were carrying towards the audience and as a result Anil Pramanik died due to a gunshot injury and another person, later identified to be one Mithun Sheikh, expired on the next day at Hospital due to the gunshot injury he sustained in the said incident.
The police after receipt of the information about the aforesaid incident arrived at the spot held inquest over the dead body of Anil Pramanik, prepared rough sketch map, seized one barrel of pipe gun, an empty cartridge from a place in front of the stage. The bloodstained earth was also seized from the place where the dead body was lying as well as a few empty bottle of liquor. On the next morning police examined 11 witnesses and then again few other witnesses were examined thereafter on the next day. Police in course of investigation in different phases arrested the accused persons and also seized mobile phones and other articles from the possession.
During the trial the prosecution examined as many as 57 witnesses but defence examined none and as it transpires from the trend of cross- examination and the answer of the accused persons in their examination under Section 313 of the Code of Criminal Procedure that they are innocent and have 5 been falsely implicated in the case and no such incident was taken place near the stage.
3. Mr. Sekhar Basu, learned Counsel, although appeared on behalf of the appellant Dilip Banerjee @ Hatkata Dilip and Raju Biswas but during his argument also covered the case of Saheb Mondal and Anup Bera, who were defended in their respective appeals by the learned advocate Mr. Sudipto Moitra.
We have heard Mr. Sekhar Basu and Mr. Sudipto Moitra appearing on behalf of the appellants and Mr. Siladitya Sanyal for the State. We have gone through the deposition of the witnesses as well as the other materials on record.
4. It is the precise argument of Mr. Basu that the appellants are entitled to acquittal for the following reasons;
(a) The P.W. 2 the defacto-complainant, who happened to be the maternal uncle-in-law of the deceased Anil Pramanik admitted during his cross- examination that he was called at the police station at around 3/3.30 a.m. At the police station he was asked to write the complaint as per the draft prepared by the police and some names of the miscreants were incorporated there. He also admitted that he did not disclose the name of any accused to the police. The scriber of the FIR P.W. 1 who also happened to be a close relation of the victim was declared hostile during the trial.
Since the P.W. 1 was not declared hostile, therefore the defence can very well rely on his evidence to dislodge the prosecution case.
(b) According to P.W. 3 Sovan Pramanik the son of the deceased, he found the dead body of his father not in front of the stage but at a place near 6 the Naya Patti Football Club. The witness further admitted he never stated to the Investigating Officer of the case that he saw the dead body of his father lying on the ground with gunshot injury.
(c) According to the P.W. 5 Alpana Pramanik the wife of the deceased that she found the dead body of her husband in a Chowmin Stall situated at a distance of 25 cubits. The witness also stated at the place she found dead body of one woman.
(d) The P.W. 5 Dipa Mondal and P.W. 8 Uttam Majhi, neighbouring persons found the dead body of Anil in the Chowmin Shop.
(e) Quite a few numbers of witnesses not having supported the prosecution case were declared hostile.
(f) The P.W. 13 Samir Mondal an eyewitness to the occurrence. This witness also claimed about the presence of appellant Dilip at the time of occurrence but did not identify the appellant Dilip Banerjee in the dock as one of the miscreants. The evidence of this witness in Court stands fully contradicted by his statement made to the police during investigation due to the reason of various omissions on vital and material particulars of the case.
(g) The P.W. 16 Khokan Majhi also claimed to be an eyewitness to the occurrence but his evidence in the Court is clearly contradictory to his statement recorded during investigation. He did not disclose to the police about the very vital and material facts of the case, viz. scuffling between the appellants and the public and firing by them. Although this witness claimed that there was 7 scuffling between P.W. 15 Samir Mondal and the members of the public but the P.W. 15 never supported his such evidence.
(h) The P.W. 20 Tarun Naskar according to the prosecution is also an eyewitness to the occurrence. But the identity of this Tarun Naskar is doubtful because of the fact P.W. 55 Debasish Ganuly, the Investigating Officer of the case while claimed to have examined one Tarun Naskar, son of Biddya Naskar but it appears from the evidence of P.W. 20 that he is the son of Baidyanath Naskar. This witness although was available immediately after the incident but he was examined four days after when he disclosed about his knowledge about the occurrence for the first time.
(i) The identity of the victim Mithun Sheikh was not clearly established nor any inquest was held over his dead body.
(j) The barrel of pipe gun and the empty cartridge seized from the place of occurrence and the bullet head recovered from the dead body of Anil Pramanik were not sent to the Ballistic Expert.
(k) Although according to P.W. 5 Alpana Pramanik the widow of deceased Anil Pramanik that she found a dead body of an old lady at the place of occurrence but there was no investigation by the police as regards to the same.
In support of his argument Mr. Basu relied on the following cases, viz., (I) State of Orissa Vs. Brahmananda Nanda, reported in AIR 1976 SC 2488 as well as in the case of Alil Mollah and Anr. Vs. State of West Bengal, reported in 1996 SCC (Cri) 1028, where Supreme Court held an eyewitness if not discloses occurrence to the police soon after the incident and disclosure is 8 made one and half days after, the credibility of such witness stands highly shattered.
Reliance has also been placed in the case of Raja Ram Vs. State of Rajasthan, reported in 2005 SCC (Cri) 1050 and in the case of Mukhtiar Ahmed Ansari Vs. State, reported in 2005 SCC (Cri) 1037, where the Apex Court held, if a witness does not support the prosecution case and is not declared hostile defence can always rely on such witness in support of its case.
Similarly reliance has been placed in the case of Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Anr., reported in (2003) 3 SCC 175, in support of the contention that when a witness does not speak about any particular fact to the police, such fact when depose in Court for the first time the same lost its all significance.
Lastly, the defence relied on the following decisions, viz. in the case of Jeet Singh and Anr. Vs. State of Madhya Pradesh, reported in (2008) 17 SCC 723 as well as in the case Chowa Mandal and Anr. Vs. State of Bihar (Now Jharkhand), reported in JT 2004 (2) SC 180, to justify in the given facts and circumstances of the case if at all the appellants are liable for conviction for the offences punishable under Section 326/34 of the Indian Penal Code.
On the other hand, the learned Counsel for the State vehemently urged that the prosecution case against the appellants essentially based on the evidence of P.W. 13 Samir Mondal, P.W. 16 Khokan Majhi and P.W. 20 Tarun Naskar, who are the eye witnesses to the occurrence. According to him on their evidence the case against the appellants has been proved beyond all reasonable 9 doubt. He further submitted the discrepancies in their evidence, if any are quite minor and not at all important. He further submitted the lapses if any on the part of the Investigating Agency when has not caused any prejudice to the appellants same is of no significance.
5. During the trial the prosecution examined total 57 witnesses. While to prove the charge of murder of Anil Pramanick and Mithun Sheikh against the appellants and others prosecution relied on 40 witnesses. Whereas rest of the 17 witnesses were relied on against the accused persons, who were charged under Section 212 of the Indian Penal Code who were ultimately acquitted in the trial.
6. The accused persons, who were placed in the trial but finally acquitted, the State preferred no appeal against their order of acquittal.
7. Out of the 40 witnesses P.W. 1 Parikshit Mondal, P.W. 7 Palani Pramanik, P.W. 10 Debabrata Pramanik, P.W. 23 Raja Bose were declared hostile. The P.W. 3, P.W. 4, P.W. 5 and P.W. 21, who are happened to be son, brother, wife and daughter of the deceased Anil Pramanik are all post occurrence witnesses and had not deposed anything which disclosed the complicity of the accused in the commission of the offence. Similarly P.W. 6 Dipa Mondal, P.W. 11 Malina Pramanik, P.W. 18 Mahadeb Pramanik, P.W. 19 Badal Mondal, P.W. 22 Paresh Chandra Saha, P.W. 24 Pijush Kanti Bhattacharee, P.W. 27 Debdas Pramanik were the local residents they were not present at the scene of occurrence and no knowledge as to what happened there. P.W. 8 Uttam Majhi is the owner of the Chowmin Stall where the deceased Anil Pramanik was found dead with gunshot injury, however this witness disclosed that he had no 10 knowledge about the incident. P.W. 9 Nemai Gayen is a seizure witness and had no knowledge about the incident. P.W. 12 Dinanath Pramanik, P.W. 14 Biswanath Patra, P.W. 15 Susanta Mondal, P.W. 17 Santi Mondal, P.W. 28 Gopal Pramanik although claimed to have been present at the musical performance but except stating that there was some disturbance in the function but deposed nothing as against the appellants implicating them in the commission of the offence. P.W. 26 Khokan Bairagi is a person who was present in the function and also sustained bullet injury but this witness also deposed nothing as against the appellants as to their involvement in the commission of the offence. P.W. 25 Swapan Das is a driver of a car which was taken on hire by the police to hold raid. P.W. 2 Netai Pramanik is the maker of the FIR, he is a post occurrence witness and has no direct knowledge about the incident. The P.W. 52 Kamal Pramanik is a rickshaw van puller who removed one of the injured person in the Hospital. P.W. 44 Dr. Supriti Ghorai held postmortem on the dead body of Anil Pramanik and P.W. 45 Dr. Samar Sinha Das held postmortem of Mithun Sheikh. P.W. 47 G.C. Karmakar and P.W. 48 Arun Kumar Nandi are the Judicial Magistrates who recorded the statement of the witnesses. P.W. 46 is a police constable and P.W. 49 Samir Halder is an A.S.I., P.W. 50 Sunil Kumar Halder is a Home Guard all are formal witnesses. P.W. 54 Sanjit Ranjan Ghosh, P.W. 55 Debasish Ganguly, P.W. 56 Nakul Chandra Mondal and P.W. 57 Sita Ram Sinha from time to time investigated the case.
Therefore, the prosecution case against the appellants finally rests on the evidence of P.W. 13 Samir Mondal, P.W. 16 Khokan Majhi and P.W. 20 11 Tarun Naskar who claimed to be present in the musical function and witnessed the occurrence.
8. In this case it would of no gain saying that the victim Anil Pramanik and Mithun Sheikh both died due to gunshot injury. The P.W. 44 Dr. Supriti Gorai held postmortem over the dead body of Anil Pramanik and according to his evidence Anil Pramanik died due to the gunshot injury which was found in his body and was ante-mortem and homicidal in nature. Whereas Dr. Samar Sinha Das the P.W. 45 held postmortem over the dead body of Mithun Sheikh and according to him the death was caused due to the effect of gunshot injury found in the body of the deceased which was ante-mortem and homicidal in nature. During their argument the learned lawyer of the appellants have not disputed the opinion of both the Autopsy Surgeon as to the cause of death. We have also for our own satisfaction very carefully gone through the evidence of both the Autopsy Surgeon P.W. 44 and P.W. 45 and find no reason to doubt the correctness of such opinion.
9. The object of a First Information Report is to set criminal law into motion and mark the commencement of the investigation relating to cognizable offences. A FIR is neither a piece of substantive evidence nor is the encyclopedia of the background scenario of the prosecution case. However, a FIR certainly assumes much importance when the maker thereof has the direct knowledge about the commission of the offence to corroborate or contradict him with reference to his substantive evidence in Court. Even where the maker of FIR, an eyewitness to the occurrence stand contradicted due to any omission of vital and 12 material particulars of the prosecution case still that would not certainly discard the entire prosecution case, when the prosecution brings on record the evidence of other witnesses who have direct knowledge as to the occurrence. In the case in hand, admittedly the maker of the FIR, P.W. 2 Netai Pramanik is a post- occurrence witness and had no direct knowledge about the incident and the scribe P.W. 1 Parikhit Mondal has been declared hostile because he claimed that he wrote the FIR on the basis of a document handed over to him by the police. However, the P.W. 2 Netai Pramanik maker of the FIR even when in his cross- examination stated that the FIR was written as per the draft prepared by the police and some names were incorporated therein, this witness was never declared hostile. There is no dispute that when a prosecution witness do not support the case of the prosecution still not declared hostile, the defence is very much entitled to rely upon such witness to establish its case and prove the innocence of the accused. In this connection the learned advocate of the appellants very rightly relied on the decision of Raja Ram Vs. State of Rajasthan (supra) and in the case of Mukhtiar Ahmed Ansari Vs. State (supra).
Thus, in view of above, if we accept the contention of the defence and discard the First Information Report of this case in its entirety as being a document drafted as per the narration of the Investigating Agency, still there is no scope to reject the prosecution case without examining the evidence of the three other eyewitnesses.
10. Now, let us consider how far the prosecution has been able to prove the charge of murder of Anil Pramanik and Mithun Sheikh against the appellants 13 on the evidence of P.W. 13 Samir Mondal, P.W. 16 Khokan Majhi and P.W. 20 Tarun Naskar.
(a) According to the P.W. 13 Samir Mondal he was present at the musical performance organized by the local boys, viz. Saheb, Anup, Raju and Kelo of Naya Patthi in the eve of Ultarath. He further deposed during the function while Laila was singing at the stage, Swapna was dancing with the associates of Hatkata Dilip and the accused Saheb, Anup, Raju on the floor. They were dancing in an obscene manner and were sprinkling liquor towards the others, over that there was some scuffling between the accused and the public, when Saheb, Anup, Raju, Kelo and the associates of Hatkata Dilip started firing from the pipe gun and revolver in their hands. Subsequently the witness came to learn that Anil Pramanik and another were killed in the said incident. This witness although identified during trial appellants Anup, Raju and Kelo but the appellant Dilip Banerjee @ Hatkata Dilip was not identified by him as one of the miscreants. However the defence challenged the evidence of said witness on the point of his non-disclosure to the police during investigation about firing from pipe gun and revolver by the accused Saheb, Anup, Raju and Kelo and the said accused were dancing with Swapna in obscene manner. During the cross- examination of the said witness defence draws his attention to such omissions, however the witness declined to admit the same. The Investigating Officer of the case P.W. 56 Sub-Inspector Nakul Mondal when was cross-examined on that score he admitted that such facts were not stated to him by the said witness. 14
(b) The next eyewitness to the occurrence is P.W. 16 Khokan Majhi. This witness claimed to be present in the Function organized on the occasion of Ultarath at Naya Patti by accused Anup, Saheb, Raju and Kelo. According to him in the Function while Laila was singing at the stage Swapna, girlfriend of Saheb was dancing below and while dancing she was sprinkling liquor from glass towards the audience. Since the public protested, a scuffling took place between the organizer of the function and the members of the public. It was his further evidence in the meantime the accused Hatkata Dilip and his associates, Saheb and Anup started firing from their revolvers. Subsequently he came to learn Anil Pramanik, who is his uncle by village courtesy and another died receiving gunshot injury. The witness identified during trial Hatkata Dilip, Saheb, Anup and Raju. The evidence of this witness was vehemently challenged by the defence on the ground when his statement was recorded under Section 161 of the Code of Criminal Procedure such allegations were never made. These omissions were put to the witness but he denied the correctness of the same. While the P.W. 55 was cross-examined on this score, he admitted that P.W. 16 Khokan Majhi has not stated to him that scuffling started in the function between the members of the audience and Anup, Raju, Saheb and Kelo over sprinkling of liquor and Hatkata Dilip, Anup, Saheb, Raju and Kelo fired from their firearms.
(c) The P.W. 20 Tarun Naskar is the last witness on whom prosecution relied on as one of the eyewitness to the occurrence. According to the said witness in the function Ms. Laila was singing at the stage, while Swapna, 15 Hatkata Dilip and his associates were dancing on the floor. It is his further evidence that the accused Hatkata Dilip and his associates were consuming liquor and sprinkling the same towards the audience and at this the members of the audience protested and there was scuffling between the members of the audience and Hatkata Dilip and his associates. The associates of Hatkata Dilip Biswajit, Papai, Saheb, Kelo, Raju, Anup and Hatkata Dilip himself opened fire from pipe guns. At that time Anil Pramanik who stood near the witness, in front of a Chowmin Stall received a gunshot injury and fell down in the ground. The witness identified Saheb, Anup, Raju, Hatkata Dilip and Tarak during the trial. The evidence of this witness was challenged by the defence on the ground that the police recorded the statement of one Tarun Naskar, son of Bidya Naskar but this witness is admittedly the son of one Baidyanath Naskar. The P.W. 55 Debasish Ganguly who was one of the Investigating Officers of the case examined the P.W. 20 during investigation. During his cross-examination it was put to the P.W. 20 that he never told to P.W. 55 the Investigating Officer of the case that during function accused Hatkata Dilip and his associates were consuming the liquor and sprinkling the same towards the audience and the name of the accuseds who were scuffling with the members of the audience and at the time of the incident the witness was standing with Anil Pramanik the deceased near a Chowmin Stall. While the witness denied the defence suggestions that no such statement was made to the Investigating Officer, but the P.W. 55 Debasish Chakraborty who examined the said witness admitted such omission. 16
On behalf of the defence a challenge has been thrown towards the credibility of P.W. 20 Tarun Naskar on the ground that although on the very next morning of the incident he met the police but he remained silent and did not disclose anything about the incident. Thereafter on 2nd of July 2004 at about 10 a.m. in the morning after about three days, for the first time he disclosed the incident to the police.
11. Having regard to the evidence of the P.W. 13 Samir Mondal and P.W. 16 Khokan Majhi, both of whom have been examined by the prosecution as the eyewitness to the occurrence, we find the said witnesses in their deposition in Court while alleged during the function some scuffling took place between the appellants and the public in the audience over the issue of obscene dance by one Swapna and sprinkling of liquor on the public and at that time the appellants started firing indiscriminately from the pipe gun and revolver they were carrying but both the said witnesses in their statement before the police recorded just after the occurrence made no mention about the same. Therefore it is evident the versions of the incident given by the P.W. 13 Samir Mondal and P.W. 16 Khokan Majhi in Court are not consistent with their earlier version recorded by the police during investigation. We have no doubt that these omissions are on very vital and material particulars of the case as regards to the complicity of the appellants in the commission of the crime and the appellants are certainly entitled to benefit of doubt. If those part of the evidence of the alleged eyewitnesses is kept out of the zone of consideration there will be no evidence showing the appellants' involvement in the alleged offences. In this connection the decision of the 17 Hon'ble Apex Court in the case of Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Anr. (supra) relied upon by the learned Counsel of the appellants can very well be acted upon, where Apex Court held ..........when the witness did not state a particular fact to the police in course of investigation, but the prosecution seeks to prove such vital fact through such witness, such is a vital omission and the Court should not rely on such evidence as it is a vital omission which is nothing but contradiction.
In the case of Dahyabhai Chhaganbhai Thakkar V. State of Gujarat, reported in AIR 1964 SC 1563 : (1964) 7 SCR 361, a 3 Judges Bench of the Hon'ble Supreme Court categorically held a witness who makes a statement inconsistent with a previous statement of him, renders him unreliable and then in the case of Sukhram V. State of Madhya Pradesh, reported in (1989) Supp. (1) SCC 214 : AIR 1989 SC 772, a bench of two Judges of the Hon'ble Supreme Court further held in such a case, the accused would be entitled to benefit of doubt.
Coming to the evidence of P.W. 20 Tarun Naskar we find from his cross-examination that after the occurrence the witness fled away from the place of occurrence and on the next morning at about 7/7.30 a.m. he again went there, when police visited the spot and held a raid at the shop of the appellant Saheb but despite the fact the witness met the police still he made no disclosure about the occurrence. We further find from his cross-examination, the P.W. 20 remain silent until he was examined by the police on 2nd of July, 2004 at 10 a.m. in the morning, nearly three and half days after the occurrence. This inordinate delay 18 in reporting the police all about the occurrence of a crime like murder, undoubtedly shattered the evidence of such witness and is fatal to the prosecution case. In our opinion it would be quite unsafe to rely on the evidence of this witness. In this regard reliance can very well be placed in the case of Patel Vs. State of Maharashtra, reported in AIR 1979 SC 135, where the Supreme Court held as follows;
"Even though it is not obligatory upon the investigating officer to record the statements of witnesses, an inordinate delay in recording the statements of eye-witnesses who were present or available when he visited the scene of occurrence may lend infirmity to the prosecution case at the trial, because it might, with other circumstances, lead to the inference that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced."
In the case of State of Orissa Vs. Brahmananda Nanda (supra), the Apex Court refused to rely on the evidence of a person claiming to be an eyewitness to the occurrence on the ground the witness was remain silent for a day and half and explanation for non-disclosure was unbelievable. It is pertinent to note in this case the P.W. 20 Tarun Naskar has offered no explanation as to why he has not disclosed anything about the occurrence to the police when on the next day within a few hours of the occurrence he met the police and then remained silent for three and half days.
19
It may not also lose sight of that one of the witnesses P.W. 26 Khokan Bairagi, who claimed to have sustained bullet injury on his right hand in the disturbance which took place at the function and removed to the N.R.S. Medical College and Hospital by the police but this witness is completely silent as to the role attributed to the appellants by the above witnesses. The witness claimed that he was called at the police station last month and was examined that means sometime in the month of March, 2005 as he was deposing in Court in the month of April, 2005.
12. Besides as above we find that according to the prosecution witnesses the appellants and others during the incident open fired indiscriminately from their firearms but the P.W. 56 the first Investigating Officer of the case who arrived at the spot shortly after the occurrence, found no marks of any firing at the place of occurrence and did not seize any bullet except one cartridge which also belies the statement of the eyewitnesses. According to prosecution witnesses, 5000/6000 people and some witnesses 2000/3000 people were present at the function but only two persons suffering injuries died and one was injured, which also touched the credibility of the prosecution case. From the scene of occurrence the Investigating Officer beside one empty cartridge, seized one barrel of pipe gun but neither the blank cartridge nor the barrel of pipe gun was sent to the ballistic expert seeking his opinion as to whether such cartridge was fired from the pipe gun, the barrel whereof was found at the place of occurrence. The police also seized the bullet head which was found in the body of the deceased Anil Pramanik during post mortem examination but same was 20 also not sent to the ballistic expert to ascertain whether such bullet head matched with the empty cartridge. There was nothing on record that any inquest was held on the dead body of Mithun Sheikh who succumbed to his injuries at N.R.S. Hospital.
It further appears from the Rough Sketch Map (Exhibit - 23) that in between 'Mela Math' of Naya Patti where function was held and the Chowmin Stall of Uttam Majhi marked 'P' in the Sketch Map, where dead body of Anil Pramanik was found, there is a double way road. While the prosecution witnesses claimed the miscreants started firing standing just below the stage, the prosecution has not come out with any explanation as to how the persons standing on Chowmin Shop at a far away place suffered gunshot injuries but none who were present in the audience near the stage. While Autopsy Surgeon P.W. 44 Dr. Supriti Ghorai unable to say the nature of firearm which caused such injury also there is no mention in the postmortem report that entry point of the bullet having any marks of singeing, tattooing and blackening. Whereas P.W. 45 Dr. Samar Sinha Das who held postmortem on the dead body of Mithun Sheikh stated that there was evidence of burning, singeing, tattooing, and blackening on the entry point. However, both the dead bodies were found very closed to each other and according to the prosecution case the miscreants opened fire almost from the same place. P.W. 45 Dr. Samar Sinha Das categorically stated that he was unable to give exact range of firing like ballistic expert with regard to blackening of wound. Then again the Investigating Officer sought no opinion from the ballistic expert in this regard. 21
13. In view of above, we are of the opinion the impugned order of conviction and sentence passed by the Trial Court against the appellants is not at all justified and accordingly the same is set aside. Appeals are allowed.
14. Nevertheless, this Court has already decided the fate of the appeals, but before parting with we must note our deep concern about the matter of investigation. We find the investigation is not only unsatisfactory but also highly defective and perfunctory. This is a case where two members of the public present in the audience during a musical performance were killed by the miscreants by gunshot when some disturbance took place at the function as the audience protested against the obscene activities of the performers and the organizers. It appears from the evidence on record that audience was full during such musical performance but the witnesses examined by the police either did not support the prosecution case during the trial or it appears from their cross- examination that they did not disclose anything to the police about the complicity of the accused in the commission of the offence, still they were cited as the prime witnesses. That apart it is the case of the prosecution the miscreants opened fire indiscriminately but police although arrived at the spot soon after the incident, seized only one blank cartridge and a barrel of pipe gun but none of those materials were sent to the Ballistic Expert. Even the bullet head recovered from the dead body of Anil Pramanik was not sent to the Ballistic Expert to ascertain whether the same matched with the blank cartridge found in the spot nor any attempt was made to seek opinion of the Ballistic Expert to ascertain the range from where such firing was made. After the arrest of the prime accused Dilip 22 Banerjee @ Hatkata Dilip, according to his statement police recovered a firearm but no attempt has been made by the Investigating Officer of the case to sent the said firearm, blank cartridge recovered from the place of occurrence and the bullet head found from the dead body of the victim to the Ballistic Expert to ascertain whether the same match with each other.
15. The appellants who are now in jail if not wanted in connection with any other case, they shall forthwith be released from custody.
The Office is directed to communicate this order to the Trial Court and send down the records at once.
Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
I agree
(J. N. Patel, C.J.) (Ashim Kumar Roy, J.)