Calcutta High Court (Appellete Side)
Bhoktu Kumar & Anr vs State Of West Bengal on 5 January, 2023
Sl No. 2
Cm/sk
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.A. 7 of 2009
Bhoktu Kumar & Anr.
-Vs-
State of West Bengal
For the Appellant : Mr. Tapan Dutta Gupta
Mr. Amit Bikram Mehata
For the State : Avishek Sinha
Heard on : 22.11.2023
Judgment on : 05.01.2023
Ananya Bandyopadhyay, J. :-
This appeal is directed against the judgment and order of
conviction dated 15.12.2008 and 16.12.2008 passed by the 1st
Court of Additional Sessions Judge, Purulia in Sessions Trial No.
13 of 2008 arising out of Sessions Case No. 90 of 2008
convicting the appellants under Sections 307/34 of the Indian
Penal Code and sentencing them to suffer rigorous imprisonment
for seven years each and fine of Rs. 2,000/- each in default to
suffer further rigorous imprisonment for six months each.
The prosecution case emanated on the basis of a
complaint dated 27.06.1999 wherein the complainant Mihir
Chandra Kumar stated to have gone to plough his land situated
2
in Hal plot No. 993 at 10 A.M. in the morning. At the relevant
time Bhaktu Kumar, Saktipada Kumar S/o Madhai Kumar,
Durgacharan Kumar, Jagai Kumar, Manilal Kumar, Fani Kumar
S/O Kanai Kumar, Sudarshan Kumar S/o Fani Kumar, Santosh
Kumar, Ranjit, Parameswar Kumar S/o Durga Charan Kumar,
Madan Kumar, Bhudu Kumar S/o Manilal Kumar, Madhu
Kumar S/o Jagai Kumar attacked three of them by hurling bomb
and firing revolver and fled. The complainant sought for an
investigation and punishment of the aforesaid persons.
Based on the written complaint, Purulia Sadar P.S. case
No.52 of 1999 dated 27.06.1999 was instituted and investigation
proceeded culminating in the submission of charge-sheet being
No. 2 of 2000 dated 08.01.2000 under Sections
147/148/149/323/324/325/326/327 of the Indian Penal Code read with Section 9B of the Indian Explosive Substance Act. Charges were framed to which the accused persons pleaded not guilty and claimed to be tried.
The prosecution cited 10 witnesses and exhibited certain documents.
The Learned Advocate for the appellants submitted there were serious inconsistencies in the deposition of the prosecution witnesses. P.W.1 Mihir Chandra Kumar, P.W.2 Brikodar Kumar and P.W. 3 Chutumoni Kumar retracted from their statement 3 recorded under Section 161 Cr.P.C. while deposing before the Court. There are contradictions in the statement of P.W.1, 2 and 3 recorded under Section 161 Cr.P.C. and evidence before the court and, therefore, their testimonies cannot be relied upon. P.W.4 Janardhan Kumar was a local witness and his testimony was based on hearsay and should be discredited. He further submitted that P.W.5 Dr. Ramendra Lal Modak who attended the injured Sahodar Kumar, Brikodar Kumar and Prafulla Kumar admitted that none of the injured persons revealed the history of injury sustained by them including the persons to have inflicted the same. There was rivalry between the parties and members of both the sides were injured and later on the dispute was amicably settled. The said statement was corroborated by P.W.8 and P.W.9. The seized articles were not sent to the FSL for chemical examination and the seized Alamats were not produced before the Court. There were lapses in the investigation. P.W.10 the Investigating Officer concurred the contradiction in the version of P.W.1, 2 and 3 before him as well as the Court. The place of occurrence could not be proved. The offending weapon was not seized. The deposition of the prosecution witnesses was unreliable and, therefore, the appeal should be allowed.
The Learned Advocate for the State submitted the testimony of the injured victim cannot be discarded when the 4 injuries suffered by the victims as described had been of similar in nature in the opinion of the Doctor who treated them who opined the injuries to be caused by bomb as well as sharp cutting weapon which corroborated the statements of P.W.1, 2 and 3. Specifically, Brikodar Kumar had seen Bhaktu to hurl bomb and the appellant Shaktipada to injure Prafulla and others with spear. Lapses on the part of the Investigating Officer in presence of credible eye witnesses cannot be fatal for the prosecution case and as such the appeal shall be dismissed.
P.W.1 Mihir Ch. Kumar inter alia, deposed the occasion of a quarrel amongst both the parties regarding felling of trees and catching fish from a village pond. The dispute ensued between the parties. P.W.1 further stated he was not assaulted by any of the accused persons on that day. He had filed a written complaint at the police station bearing his signature Marked as Ext. 1. He further stated Prafulla Kumar, Sahodar Kumar and Brikodar Kumar were injured and had to be admitted at Jhalda Hospital thereafter shifted to Purulia Sadar Hospital. The condition of Sahodar worsened and he was shifted to Bankura Sammelani Medical College and Hospital for better treatment. P.W.1 further stated the accused persons were armed with bomb. The appellant Bhaktu Kumar hurled bomb towards Sahodar, Brikodar and Prafulla Kumar. He further stated that 5 the accused persons also filed a criminal case over the same incident against them which ended in acquittal.
In his cross-examination he stated to have been an accused in the counter-case filed by the accused persons and for the present he had no allegation against the accused persons. He further stated to have mentioned in his written complaint that Bhaktu hurled bomb at Sahodar, Brikodar and Prafulla.
P.W. 2 Brikodar Kumar stated that the incident took place on 12th day of Ashar 1999 when his father Prafulla and brother Sahodar were with him at the field ploughing the same. Bhaktu, Saktipada, Madhai chased them being armed with bomb, spear, bow and arrows in their hands. At that time Bhaktu hurled bomb towards resulting in P.W.2 and his younger brother sustaining bleeding injuries. Saktipada assaulted his father with spear and the accused Madhai assaulted them with stone. They were initially taken to Jhalda P.S. and therefrom to Jhalda Hospital and after to Purulia Sadar Hospital. Considering the severity of injury of his brother Sahodar was referred to Bankura Medical College and Hospital.
During his cross-examination he stated on interrogation he told the police that Bhaktu, Saktipada and Madhai being armed with bomb, spear, bow and arrows chased them and his brother and himself were injured due to hurling bomb by 6 Bhaktu. Saktipada assaulted his father by spear. He further stated that they ploughed the land for about 10 to 15 minutes. Thereafter, on the way to their house, the accused detained them. The incident took place in front of the house of Madhai which is a pathway. Bhaktu, Saktipada and Madhai were injured and admitted in the hospital. He was also an accused in a criminal case concerning the self-same incident.
P.W.3 Smt. Chutumoni Kumar stated on hearing a commotion she came out of her house and found her husband and two sons lying on the ground with bleeding injury. Her husband told her that Shaktipada assaulted him by spear on his belly and Bhaktu hurled bomb towards his sons. The injured persons were firstly taken to Jhalda P.S. and thereafter shifted to Purulia Sadar Hospital. The bloodstained wearing apparels were seized by the police by a seizure list with her LTI on the same.
During her cross-examination she stated on interrogation she told the police that Shaktipada assaulted her husband by spear and Bhaktu hurled bomb towards her two sons which injured them.
PW-4 Janardhan Kumar stated to have known Brikodar Kumar, Sahodar Kumar, Prafulla Kumar and Mihir Kumar and others. PW-4 stated to have heard about the incident of assault 7 from both the parties. Brikodar Kumar, Sahodar Kumar, Prafulla Kumar were admitted in the hospital.
During his cross examination he stated a compromise had taken place between the parties involved in the incident of assault.
PW-5, Dr. Ranendra Lal Modak attended Prafulla Kumar at the Sadar Hospital at Purulia with a penetrating injury on the left side of upper abdomen. Prafulla Kumar had to be "operated on the wound left of epigastum a lost transversely placed just below the costal margin directed down-wards and medially 1"x ½"peritoneal cavity. On operation Enplaratory laparotomy he found haema/erotoneum. As rent in the lesser by the side of lesser curvature of stomach going deep into the head of pancreas he repaired the penetrating injury. Both sides spleen, stomach, small gut could be detected. Other organs were unaffected. The injury report of patient, Prafulla Kumar containing six pages written and prepared and signed by him was (marked as Ext.2). The patient was under his treatment till 10.07.1999)".
Prafulla Kumar was discharged on 3.8.1999. According to PW-5 the penetrating wound may be caused by any type of sharp cutting weapon including spear and the injury sustained by him was grievous in nature and definitely on the fatal part of his 8 person. On the same day, PW-5 had also examined one Sahodar Kumar and treated him suffering from bomb blast injury.
PW-5 further examined Brikodar Kumar who was admitted under his care with bomb blast injury involving both the legs and right side of the face.
He found one lacerated injury over right leg 1" x ½" x 1/4th and splinter injury over left leg and face and the patient was discharged on 30.07.1999. The patient Brikodar Kumar was referred to Dr. J.N.Mahato. The injury report of patient Brikodar Mahato prepared and signed by him (containing three pages marked as Ext.4).
According to PW-5, the bomb injuries may be caused by explosion of single or several bombs.
During his cross examination PW-5 stated Prafulla Kumar was conscious at the time of his examination and he did not disclose the history of assault or by whom the injury was inflicted on him. No history of assault was mentioned in case of Brikodar Kumar and Sahodar Kumar .
PW-6 and PW-7 were tendered for cross-examination by the prosecution and the same was declined.
PW-8, Baburam Kumar‟s testimony was based on hearsay as he was absent at the time of the incident.
PW-9, Ajit Kumar‟s testimony is based on hearsay too. 9 PW-10 S.I. Ram Narayan Hati stated to have been attached to Jhalda P.S. on 27.6.1999. He was endorsed to investigate Jhalda P.S. Case No. 52 of 1999 dated 27.6.1999 based on a written complaint by the Officer-in-Charge of Jhalda P.S. The said statement was marked as Ext. 1/1 and the formal FIR was marked as Ext. 5. PW-10 visited the place of occurrence and prepared a rough sketch map with index marked as Ext.6. He examined available witnesses and recorded their statement under Section 161 of Criminal Procedure Code. He seized certain articles vis. „Sutli‟, „smell with gun powder (barud)‟, „some ramnants also smell with gun powder‟ and „some pieces of paper smell with gun powder‟. He also seized blood stained earth from the P.O. under a seizure list bearing his signature marked as Ext.
7. He collected the injury report in respect of the injured persons and arrested the accused persons. He seized the wearing apparels of the injured as produced by Ramdhan Kumar at Jhalda P.S. Carbon copy of the said seizure list prepared and signed by him was (marked as Ext. 8).
On completion of the investigation he submitted the charge-sheet. During his cross-examination he stated the seized articles were not sent to FSL for chemical expert‟s opinion. The seized Alamats were also not found in the court. He further stated the witness Brikodar Kumar did not state to him that 10 Shaktipada and Madhai were armed with spear bombs, bow, arrows who chased them specifically. He also did not express that he along with his brother were injured due to the hurling bombs by Bhaktu and that Shaktipada assaulted his father by spear or Madhai pelted stones towards them. Chutumoni Kumar in her statement recorded under Section 161 of Cr.P.C. did not state that Shaktipada assaulted her husband by spear.
The Learned Advocate for the appellants harped upon the compromise between the parties. In a criminal case of the instant nature a compromise between the parties if at all does not affect the adjudication in any manner. Such stance and submission on the part of the Learned Advocate for the appellant cannot be considered and appraised, accordingly discarded by this Court at the inception.
Assailing the evidence of the prosecution witnesses major emphasis is cast upon the testimony of PW-2, Brikodar Kumar who was the injured victim. Therefore, his presence at the place of occurrence is established and indubitable. According to him he had seen the appellant Bhaktu to hurl bomb at him and his younger brother whereby they sustained bleeding injuries. He had also seen Shaktipada assault his father with the spear.
During his examination in chief PW-2 stated that while they were ploughing the land Bhaktu, Saktipada and Madhai 11 chased them being armed with bomb, spear, bow and arrows in their hands. However, during his cross-examination he stated the incident to have taken place in front of the house of Madhai which is a path way. He stated he found Bhaktu, Saktipada and Madhai were injured and admitted in the hospital concurring a fight between both the parties.
PW-1 stated Bhaktu Kumar hurled bombs towards Sahador, Brikodar and Prafulla Kumar. However, in his cross- examination PW 1 stated on the day of occurrence firstly he was in his house and rushed to the spot when the quarrel started.
PW 1 further stated after arriving at the spot he found Sahodar, Brikodar and Prafulla lying injured on the ground. From his cross-examination it becomes evident that he had not seen Bhaktu to hurl bombs at Sahodar, Brikodar and Prafulla as he had arrived at the spot, after the aforesaid persons were injured and found them lying on the ground. PW 1 did not witness the appellant Nos.1 and 2 to hurl bomb and inflict injury with the spear respectively.
PW-3 Chutumoni Kumar reached the place of occurrence and found her sons lying on the ground with bleeding injuries. She heard from her husband that Saktipada assaulted him with spear on his belly and Bhaktu hurled bomb towards her sons. The prosecution did not cite Sahodar as a witness who had also 12 been injured in the incident. Prafulla the father of PW-2 and husband of PW-3 expired two years before the recording of the evidence.
The dispute that occurred between both the parties out of previous enmity and rivalry caused animosity between both the parties which resulted in filing of case and counter case against each other. Apart from the injured witness PW-2 no other prosecution witness had seen Bhaktu to hurl bombs and Saktipada to pierce the spear to injure the abdomen of Prafulla Kumar. The offending weapon was not recovered by the Investigating Officer. The seized articles were not sent to the FSL for chemical expert‟s opinion nor was the seized Alamats produced before the court.
The prosecution failed to cite any other independent eye witness. The evidence of sole eyewitness is fundamentally worthwhile to establish a prosecution case, where quality of evidence is material and not the quantity. The evidence of an injured victim is reliable when the same is independent and unbiased without reproach and condemnation.
The testimony of the injured witness is generally trustworthy where he or she would not intend to inculpate an innocent person. However, in the instant case there is an existence of strong acrimony between the parties. 13
In the case of Vadivelu Thevar v. State of Madras 1the Hon‟ble Supreme Court observed that, "Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."
In the case of Ramashish Rai vs. Jagdish Singh,2 the Hon‟ble Supreme Court has observed that, "The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well settled principle of law that enmity is a double edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the Court to 1 (1957) SCR 981 2 (2005) 10 SCC 498 14 examine the testimony of inimical witnesses with due caution and diligence."
PW-2 during cross-examination stated about four years back they had dispute in connection with a tank with Bhaktu, Saktipada and Madhai. He further stated to have narrated to the police that Bhaktu, Saktipada and Madhai being armed with bomb spear bow and arrows chased them. Saktipada assaulted his father by spear Madhai pelting stone towards them. However, PW-10, the Investigating Officer during his cross-examination refuted the contentions of PW-2 to have mentioned about Bhaktu, Sahodar and Madhai being armed with spear bomb, bow and arrows to chase them specifically. PW-2 also did not state to the Investigating Officer that both PW-2 and his brother were injured due to hurling bombs by Bhaktu. PW-2 also did not state to PW-10 that Saktipada assaulted his father by spear and Madhai pelted stones towards them. PW 2 in his cross- examination stated to have been unconscious on the spot. They were attacked while they were returning from the field, contrary to what he had stated in the examination-in-chief. He further stated at the time of returning from their field no villagers could be seen. When they arrived in front of the house of Madhai, many persons were assembled and he could name none of the 300 villagers present there. His statements evince inconsistencies to be discredited.
15
PW-3 did not state to the police in her statement under Section 161 of Cr.P.C. that Saktipada assaulted her husband by spear. The testimony of PW-3 based on hearsay without corroboration and deviation with her earlier statement before the police makes the same unworthy of credibility.
It is a fact that the medical evidence establishes injuries inflicted by a sharp cutting weapon including a spear as well as through bombs . However, the spear was not recovered and apart from PW-2 nobody had seen Saktipada to have assaulted Prafulla with a spear. The spear was not recovered. The seized articles were not sent for FSL examination nor produced before the Court. No independent witness was cited. The Investigating Officer did not record the statement of Prafulla Kumar and Sahodar Kumar. No attempt was made on the part of the Investigating Officer to get the statement of the injured victims recorded under Section 164 of Cr.P.C. There is every possibility of PW-2 the injured victim to retaliate and seek revenge against the present appellants due to long existing discordiality and rancour between the parties. The testimony of PW-2 to be the sole eye witness as well as the injured witness cited by the prosecution cannot be verily relied upon as his evidence is shrouded with doubt, biasedness and prevarication. 16
Under such circumstances, it cannot be said that the prosecution has proved its case beyond his reasonable doubt.
The appeal is accordingly, allowed.
It is informed that the appellants are on bail. Bail bond of the two appellants shall be discharged after expiry of six months in terms of Section 437A of the Code of Criminal Procedure.
Lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)