Calcutta High Court (Appellete Side)
Prasanta Bauri vs State Of West Bengal on 10 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item no. 305
ss/RP
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 270 of 2005
Prasanta Bauri
Versus
State of West Bengal
For the appellant : Mr. Partha Sarathi Bhattacharyya
For the State : Mr. Arun Kumar Maiti, Ld. A.P.P.,
Ms. Sujata Das
Heard on : 10.01.2018
Judgement on : 10.01.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 11.03.2005 passed by the learned Additional Sessions Judge, 2nd Court, Suri in Sessions Case No. 41 of 2002 convicting the appellant for commission of offence punishable under section 302 of the Indian Penal Code and sections 25/27 of the Arms Act and sentencing the appellant to undergone imprisonment for life and to pay a fine of Rs.1,000/‐, in default, to suffer simple imprisonment for three months for the offence under section 302 of the Indian Penal Code and to undergo rigorous imprisonment for one year for the offence punishable under section 25 of the Arms Act and to undergo rigorous imprisonment for one year for the offence under section 27 of the Arms Act and to pay fine of Rs. 1,000/‐, in default, to suffer simple imprisonment for three months more, all the sentences to run concurrently.
The prosecution case, as alleged, against the appellant is to the effect that on 12.11.1998 at about 10 a.m. the victim Sukumar Mete was repairing his cycle in the cycle repairing shop of Prafulla Garai near Dharmashala. At that time the appellant came to the said spot and shot at the victim from a pipe gun. Subsequently, the appellant went to the police station and surrendered himself with the weapon of offence at the said police station. Over this issue, the bother of the appellant, namely Sukhen Mete, P.W. 1 lodged first information report resulting in registration of Dubrajpur P.S. Case No. 104 of 1998 dated 12.11.1998 under section 302 of the Indian Penal Code and sections 25/27 of the Arms Act against the appellant.
In the course of investigation sanction for prosecution was obtained and charge sheet was filed against the appellant. The case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, 2nd Court, Suri for trial and disposal.
Charges were framed under section 302 of the Indian Penal Code and under sections 25/27 of the Arms Act.
The appellant pleaded not guilty and claimed to be tried.
Prosecution examined 15 witnesses and exhibited a number of documents to prove its case. The defence of the appellant is one of innocence and false implication.
In conclusion of trial, the trial judge by judgment and order dated 11.03.2005 convicted and sentenced the appellant, as aforesaid.
Mr. Bhattacharyya, learned counsel appearing for the appellant argued that the first information report is hit by section 162 of the Cr.P.C. as prior information with regard to offence was already recorded at the police station. He further submitted that the seizure of weapon of offence is doubtful as the case number was subsequently inserted in the seizure list as admitted by P.W. 12. It is further submitted that the names of P.W. 8 and 9 who claimed to be eyewitnesses are not stated in the first information report while Prafulla Garai who was the owner of the cycle repairing shop has not support the prosecution case. Evidence of P.W. 1 suffers from various improbabilities and embellishments and ought to be discarded. It is also submitted that the autopsy surgeon P.W. 5 could not say with certainty that the injury on the victim was caused by the seized firearm. He accordingly prayed for acquittal of the appellant.
On the other hand, Mr. Maiti, learned counsel for the State argued that the prosecution case is proved through the eyewitnesses, P.W. 1, 8 and 9. Evidence of Autopsy Surgeon, P.W. 5, supports the ocular version of the said eyewitnesses. Evidence of P.W. 7, 12 and 15, the police officers establish that soon after the incident the appellant went to the police station and surrendered himself with the pipe gun which clearly established the prosecution case. Sanction has been duly proved in the instant case. Accordingly he prayed for dismissal of the appeal.
P.W. 1, 8 and 9 are the eyewitnesses in the instant case. P.W. 1 is the brother of the victim and the de facto complainant in the instant case. He deposed that on 12.11.1998 at about 10 a.m. while he going to the cycle repairing shop of Prafulla Gorai to receive vegetables purchased by his brother he found that the appellant fired at his brother on the right side of his head just over his right ear. Thereafter, the appellant ran towards Dubrajpur Police Station and surrendered himself with the pipe gun at the police station. He followed the appellant to the Police Station. Then he came back to his brother and found that his brother had died in the meantime. At that time of occurrence Netai Das and Ajit Das, two rickshaw pullers were present at a distance of 25/30 cubits away. Darogababu came to the spot and held inquest over the dead body. He put his signature on the inquest report. He accompanied Darogababu to the police station and submitted letter of complaint (Exhibit 1). At the time of inquest Darogababu seized bloodstained earth, controlled earth and part of fired cartridge under a seizure list. He signed the seizure list (Exhibit 3/1). Pipe gun was also seized under a seizure list and he signed on it. There was previous grudge between the appellant and the victim over negotiation of marriage between the victim and the sister of the appellant. A maintenance case had been filed against the victim. He identified the pipe gun and the bullets in court.
P.W. 8 is a rickshaw puller. He deposed that on 25th Kartick, 1405 B.S. around 10 a.m. he was standing with his rickshaw on the eastside of gumti on the other side of the pitch road. He was accompanied by P.W. 9, Netai Das. The victim had entered the cycle repairing shop of Prafulla Garai. He was repairing his cycle. At that time the appellant came and talked with the victim and fired at his head. The victim fell down and died. The appellant ran towards Dubrajpur Police Station. At that moment, he noticed Sukumar Mete at the spot.
P.W. 9 is the other rickshaw puller. He is corroborated the evidence of P.W. 8. P.W. 2, Prafulla Garai, the cycle repairing shop owner was examined by the prosecution but he did not support the prosecution case and was declared hostile. He was cross‐examined to prove the fact that he had resiled from his previous statement recorded by the police.
P.W. 3 is the owner of the grocery shop beside the gumti of P.W. 2. He was also declared hostile.
P.W. 5 is the doctor who held post mortem report over the dead body of the victim. He found the following injuries:‐
1. Wound of entry on forehead size 2 cm x 2 cm over right side of midline (1 cm from midline) over frontal bone.
2. Skin at the margin of the wound is inverted and slightly charred at faces edge.
3. Wound of exit bullet a large wound of size 12.5 cm in vertical axis 11.5 cm in horizental axis involving part of occipital and posterior part of left temporal bone.
4. Wound margin was eveted. Most of the bone is clotted and part of fractured fragments attached by skin tags at the margin of wound edges which are irregular. Brain matter and blood clots are seen coming out through the wound. Brain along the track of wound is severely lacerated and haemorrhaging with injury of blood vessels. No bullet or part of it is found in the track of wound. Brain matter along the track of wound is sent for chemical examination.
Besides these no other injuries were found. Other organs were normal and healthy. Internal organs like liver and spleen were pale in colour.
He deposed that cause of death was due to shock and haemorrhage due to the aforesaid injuries which were ante mortem and probably homicidal in nature and sufficient to cause death.
In cross‐examination he stated that it was not possible for him to say whether the injuries were caused by Material Exhibit 1 and 2, that is, the pipegun and fired bullet.
PW 7 is a constable who was attached to Dubrajpur Police Station on 12.11.1998. He deposed that on that day at around 10.10/10.15 hours the appellant entered into the police station with a pipegun along with .303 live cartridges. He surrendered himself along with pipe gun and life cartridges and stated that he had killed Sukumar Mete. The pipe gun and live cartridges were seized by S.I. S.K. Sarkar (PW 13) under a seizure list. He put his signature on the seizure list.
PW 12, an A.S.I of police, attached to the Dubrajpur Police Station was a witness to the said seizure. He proved his signature on the seizure list. In cross‐examination, he stated that the police case number was inserted in the seizure list subsequently.
P.W.13 is a ballistics expert who deposed that he examined the seized pipe gun, live cartridges as well as the fired cartridge and opined that the firearm was in a working condition. He however could not opine whether the fired cartridge had been fired from the said firearm.
P.W.6 is a UD Clerk attached to the office of the District Magistrate, Birbhum. He proved the sanction order issued by the District Magistrate (Exbt.6).
PWs.14 and 15 are the investigating officer in the instant case. PW 15 deposed that on 12.11.1998 he was in‐charge of Dubrajpur police station. At about 10.05 A.M. a person came to the police station and disclosed his identity as Prasanta Bouri and deposited a pipe gun along with .303 fired cartridge and one live cartridge and sated that he had killed Sukumar Mete 10 minutes ago. He recorded the said fact in a general diary bearing general diary entry no.537 dated 12.11.1998 (Exbt.8) and took the accused into custody. He seized the arm and ammunitions under a seizure list. During preparation of the seizure list PW 1 came to the police station and lodged complaint (Exbt.1). He filled up the formal FIR. He went to the place of occurrence and held inquest over the dead body of the victim. He prepared the inquest report (Exbt.11). He forwarded the dead body to Suri morgue for the purpose of post mortem examination. He collected bloodstained earth and some controlled earth under a seizure list (Exbt.12). The front portion of the fired cartridge was seized from the place of occurrence (mat. Exbt.1). He sent the seized firearm and live cartridges to the Arms Expert. He collected the post mortem report on 05.01.1999.
PW 14 collected the Arms report as well as a copy of the sanction order and submitted charge sheet.
From the evidence on record it appears that on 12.11.1998 at about 10 A.M. the victim Sukumar Mete was repairing his cycle at the cycle repairing shop of Prafully Gorai. At that time the appellant came and fired at him from his pipe gun. The victim suffered gun shot injuries on his head and fell down at the spot. PW 1, his brother, was proceeding to the cycle repairing shop in order to collect vegetables which had been purchased by the victim. PW 1 has graphically described the manner in which the appellant fired at the victim. His evidence was corroborated by two other independent witnesses, namely, PWs. 8 and 9, two rickshaw pullers who were present on the other side of the road in front of the cycle repairing shop. They deposed that the appellant suddenly came to the place of occurrence and fired at the victim causing gun shot injuries on his head. Motive for commission of the offence has also been proved by PW 1. Soon thereafter, the appellant proceeded to the police station and surrendered himself with the firearm and ammunitions. This part of the prosecution case has been established by PW 7 and 15. It is true that there is some confusion with regard to the seizure of the fired cartridge. While PWs.12 and 15 claimed that the fired cartridge was produced by the appellant, P.W. 15 also deposed that the front portion of the fired cartridge was seized from the place of occurrence. Hence, I am of the opinion that the prosecution has not been able to prove the seizure of the fired cartridge in the instant case and such fact is also corroborated by the deposition of the Arms Expert who while stating that the seized pipe gun was in working condition had deposed that he was unable to state whether the fired cartridge was fired from the seized pipe gun. In view of the consistent eyewitness version which is corroborated by medical evidence, minor discrepancy relating to the seizure of the allegedly fired cartridge cannot sound a death knell to the prosecution case. It has been strenuously argued that the incident was already reported to the police by the appellant himself as deposed by PW 15. Hence, the FIR registered by PW 1 is hit by Section 162 Cr.P.C. It is true that the incident which had already reported by the appellant as narrated by PW 15. Such fact was diarized by PW 15 as Exhibit 8. I have examined Exhibit 8 and I find that the narration therein does not run counter to the evidence of the prosecution witnesses as well as the FIR lodged by PW 1 in the instant case. In view of the aforesaid fact treating the written complaint of PW 1 as first information report in the instant case though irregular does not strike at the root of the prosecution case so as to render it improbable. The conduct of the appellant in going to the police station soon after the alleged crime and handing over the weapon of offence to the police officer clearly corroborates the evidence of the eyewitnesses and established the prosecution case beyond reasonable doubt.
Learned Counsel for the appellant had argued that there was some irregularity in the entries made in the seizure list in the instant case. The evidence of PWs.7 and 15 with regard to the fact that the appellant came to the police station and surrendered himself along with the weapon of offence is corroborated by the eyewitnesses who were present at the place of occurrence. Hence, I am of the opinion that the incident occurred in the manner and course as narrated by the PWs.1, 8 and 9 and minor contradictions in the preparation of seizure list does not militate against the prosecution case. Moreover, the ocular version of the PWs.1, 8 and 9 is corroborated by the medical evidence. PW 5, autopsy surgeon, had deposed that the victim suffered gun shot injuries resulting in homicidal death. He has also stated that the injuries were sufficient in the ordinary course to cause death. Sanction to prosecute has been proved in the instant case. In view of the aforesaid facts, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt. The conviction and sentence of the appellant are, accordingly, upheld.
The appeal is, thus, dismissed.
Period of detention suffered by the appellant during the investigation, enquiry and trial shall be set off against substantive sentence under Section 428 of the Code of Criminal Procedure.
The lower court records along with a copy of this judgement 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.
(Joymalya Bagchi, J.) I agree, (Rajarshi Bharadwaj, J.)