Calcutta High Court (Appellete Side)
Rakesh Kumar Mishra vs State Of West Bengal on 17 May, 2016
1
S/L. 14.
May 17, 2016. C. R. A. No. 129 of 2015
Rakesh Kumar Mishra
Vs.
State of West Bengal
Mr. Sekhar Bose,
Mr. Souvik Mitter,
Mr. Ranadev Sengupta
...for the appellant.
Mr. Manjit Singh, Public Prosecutor,
Mr. Anand Keshri,
Mr. Pratick Bose
...for the State.
Bandel GRPS Case No. 22 was started under Sections 307/326/342/384/34 of the Indian Penal Code against
the accused persons including appellants on the basis of the FIR lodged by Narottam Chakraborty, a co-passenger, PW 1.
The prosecution case as unfolded before this Court is as follows:-
The defacto complainant along with Sri Narottam Dutta, Babli Ghosh, Motilal Mahato, Sankar Mattobar and
eight others boarded the train on July 9, 1998 being no. M-237 when it was in just running condition from Bandel Railway
station. At that time they boarded in the laides compartment of that rain. In the next station, that is, in the Adispatagram
Railway station six RPF Jawans and one RPF Officer boarded in that compartment. The RPF staff-members did not allow
those person to change that compartment and started beating them. Thereafter the RPF Jawans throw away Narottam
Dutta from the running train when the train left Mogra railway station and they confined nine other passengers and took
them to Burdwan Railway station and they were confined there in the lock up. The RPF staff-members snatched Rs. 65/-
from the defacto complainant and some money from other passengers forcibly and did not issue any receipt in lieu thereof.
It has been stated in the written complaint that said Kajal Dutta was admitted in NRS Hospital, Kolkata in critical
condition.
On usual investigation the Investigating Officer submitted chargesheet under Section 304(Part-I)/323/342 read
with Section 34 of the Indian Penal Code. After the case was committed to the Court of Sessions the learned Trial Judge
framed charges thereunder against the accused persons including the appellant to which they pleaded not guilty and
claimed to be tried. Thereafter the prosecution examined as many as twenty-seven witnesses and on closure of evidence
the appellant was examined under Section 313 of the Code of Criminal Procedure to which he had inclined to adduce
evidence. The defence case as emerges from the trend of the cross-examination of the prosecution witnesses and from the
statement of the accused recorded under Section 313 of the Code of Criminal Procedure is one of denial of charges
levelled against him.
2
Now the point for consideration is whether or not the prosecution has been able to establish the charges
against the accused persons beyond all reasonable shadow of doubt.
After having heard the learned counsel for both the parties, the learned Trial Judge by the order and
judgement dated February 24, 2015 found the appellant guilty of the offences charged under Sections 304(Part-
I)/323/342/34 of the Indian Penal Code and after giving an opportunity of being heard on the question of sentence after
reflection the appellant was sentenced to suffer rigorous imprisonment for life and further to pay fine of Rs. 10,000/- in
default to suffer rigorous imprisonment for one year for the charge punishable under Section 304(Part-I) of the Indian
Penal Code and further no separate sentence was passed in respect of charges under Sections 323/342 of the Indian Penal
Code considering the major punishment under Section 304(Part-I) of the Indian Penal Code.
The appellant has challenged the said impugned judgment and order of conviction and sentence, inter alia, on
the ground that the FIR , which led to the registration of the case, that is, Bandel GRPS Case No. 22 of 1998 dated July 13,
1998 and on the basis of which consequent investigation took place was not lodged at the first available opportunity. It is
the prosecution case that the alleged incident took place on the night of July 9, 1998 at about 11-30 PM. The complainant,
Narottam Chakraborty was a co-passenger of the deceased, Narottam Dutta, and as per his own admission as witness, the
entire incident took place while being in the same compartment. There was a delay of more than three days in reporting
the said incident and such delay has remained unexplained. Even prosecution could not forward any explanation during the
course of entire trial as to why no effort was undertaken to inform the local police station by any person including PW-1
and PW-10 on that day. Accordingly, it is submitted that this conduct on the part of the prosecution being not unexplained
delay in initiation of the instant case casts a grave shadow of doubt on the veracity of the prosecution case itself and on
this score alone prosecution case could have been rejected. Secondly it is submitted that it appears from the evidence of
PW-1, namely, Narottam Chakraborty, that he was co-passenger of the deceased Narottam Dutta was expected to have
witnessed in the incident alleged, but while adducing evidence during the trial he simply stated that he saw the assailant on
the following morning also. However, he failed to identify anyone in court during the trial though PW-1 has indentified
the appellant and other accused persons during TI Parade proceeding. PW-2 while adducing evidence in court and during
trial has stated on oath that he boarded the same train with the deceased and was in the same compartment but surprisingly
this particular prosecution witness stated he did not see anything as he was at the corner in the compartment. The evidence
of PW-7 the Station Master of Mogra Railway Station shows that any incident which takes place within the precincts of
the railway station is always entered in the Station Diary. The incident alleged took place on July 9, 1998 was also
recorded in such station diary, which was subsequently seized by Investigating Agency wherein it is noted that one
unknown passenger fell from UP M-237 at STR signal and received injury. This particular aspect of the case did not
receive the judicial notice of the learned Judge, which resulted in conviction of the appellant. One Gautam Saha as PW-10
stated that the deceased informed him that he had been pushed by RPF personnel. The said fact has not been corroborated
by him in his cross-examination because he did not think it necessary to disclose the said fact either to the station master,
who was on duty at that point of time or to the doctor, who treated the deceased at Mogra Hospital. Such conspicuous
silence on the part of PW-10 before the doctor and all other authority in spite of having information with regard to the
incident purportedly, that too being divulged by the deceased himself creates a grave suspicion with regard to the veracity
of the claim of PW-10 about his knowledge gathered from the deceased that the deceased was pushed by the RPF
3
personnel and this evidence even taken into consideration that the deceased was pushed by the RPF personnel cannot be
taken into consideration to hold that it was the appellant and appellant only who had pushed the deceased from the ladies
compartment in a running train.
Our attention is invited to the evidence of PW-14, namely, Nirmal Kumar Dutta, father of the deceased, who
was informed by his son about the incident but he has not divulged the name of the appellant. It appears from the evidence
that he made no attempt to get the statement of his son recorded by the hospital authority at that point of time. Such
conduct of PW-14 casts a serious shadow of doubt on the entire prosecution case.
Mr. Sekhar Bose, learned senior counsel appearing for the appellant, invites our attention to evidence of PW-
24 that the learned Magistrate, who conducted the TI Parade on April 19, 2000 an order was passed for holding the TI
Parade of the accused persons. Almost a month thereafter on May 15, 2000 TI Parade was conducted in respect of the
appellant herein and two other accused whereas the incident took place on July 9, 1998. There was no explanation as such
given by the prosecution with regard to the inordinate delay in conducting the TI Parade. Therefore, the TI Parade
proceeding in respect of the identity of the appellant is also not conclusive part of evidence. It would also appear from the
evidence that one Kedarnath Chowdhury and Khandakar Nurul Apsar were also indentified in the TI Parade but no
specific role was attributed to the appellant here and also two other accused persons, who were allegedly indentified in the
TI Parade apart from the fact that they were present in the same compartment. It is contended that being RPF personnel
the appellant herein was officially supposed to be present in the compartment of the train and such fact by no means could
be of any avail to implicate the appellant in the instant case inasmuch as the prosecution witness identifying the T.I Parade
simply stated about his presence in the compartment but no implication has been revealed as against the appellant to
conclude that he was that person, who had pushed down the deceased from the running ladies compartment.
This aspect of the case has also not been taken care of by the learned Judge while discussing with regard to
the identify of the appellant. It would appear from the evidence of the autopsy surgeon, PW-19 that death occurred due to
formation of pus and gangrene in injuries no. 3 and 4. He further opined that formation gangrene and pus may the
outcome of absence of proper treatment in proper time. Regard being had to the nature of evidence of the autopsy surgeon
the learned Judge ought to have held that the death of the deceased had occurred due to the shortfall of the medical
assistance provided to him and that the appellant herein by no means was responsible for the same.
It is argued by Mr. Bose that the medical paper of NRS Medical College and Hospital, which have been
marked as Exhibit- A during the course of trial was at the instance of the defence but the prosecution did not taken pain to
bring home the reality of the truth. It appears from the said medical papers that is Exhibit-A regarding the short history of
the case as stated by the patient himself was that the deceased fell from a running train at Mogra Railway station on July 9,
1998 which was followed by injuries on left leg and hand. These medical papers if taken into consideration did not
corroborate the prosecution case against the appellant for having pushed down the deceased from the running train.
It would reveal from the evidence of CW-1, Dr. Probal Kumar Bose that he had examined the patient, namely,
Kajal Dutta, on July 10, 1998 at 9 pm and found him conscious on being referred from Chinsurah Hospital and the
deceased was admitted in the Surgical Ward of the NRS Medical College and Hospital in his cross-examination on behalf
of the appellant. It revealed from his evidence that patient had given short history of the case stating that at the particular
4
time he sustained injuries by falling from a running train on July9, 1998 as a result he received injuries in his left leg and
hand.
Mr. Basu, learned senior counsel, has pointed out that the witnesses who have identified the
appellant in the test identification parade, have failed to identify the appellant during the trial. It would
appear from the evidence of PW 1, Narottam Chowdhury, that he could not know the name of the
persons who have assaulted him and on the fateful day three more persons were with him in that
compartment namely, Babli Ghosh @ Raja, Sankar Matabbar and Motilal Mahato. Subsequently, he
came to know from the media that the appellant, Rakesh Kumar Mishra, assaulted him. But it is
doubtful whether he would be in a position to identify the person who assaulted him. Undoubtedly, he
could not identify the appellant in test identification parade as stated by him but he identified the
accused person namely, Kedarnath Chowdhury, who had assaulted him. Accordingly, this witness
failed to identify the appellant herein.
PW 5, Motilal Mahato, with two other persons who had identified the appellant and to be present in the same
compartment on the fateful night, has also failed to identify the appellant at the time of test identification parade. During
the trial though he has stated that he boarded the ladies compartment of that train and he had tried to change the
compartment at Adisaptagram but some persons in civil dress did not allow him to step down and he was beaten up and
ultimately he was taken to Burdwan station and was released on the following day. But during trial he could not identify
the appellant.
PW 6, Manoj Nandi, was declared hostile by the prosecution who had seen the deceased as a
boy lying at the extreme outer of the platform facing the Burdwan and he asked the boy as to why he
was lying there and the reply was that he fell from the train by slip. This witness has not stated about
any indication against the appellant though he has been declared hostile but his piece of evidence has
not been controverted by the prosecution.
Mr. Basu further submits that prosecution witness nos. 1, 2 and 16 stated that the appellant pushed the victim
from the compartment on the fateful night. The witnesses, who allegedly identified the appellant and other RPF personnel
in the TI Parade did not identify the appellant in court. PW-1 in his evidence stated that one RPF personnel slapped him
and the victim fell down from the train and he heard a shouting. Subsequently, he learnt from the media that the assailant's
name is Rakesh Mishra but he could not identify the said Rakesh Mishra in court. The learned Judge was totally wrong in
using the evidence of TI Parade as a substantive piece of evidence. Witness no. 10, who is a betel leaf stall owner and the
witness no. 14 who is the father of the victim, allegedly heard the incident from the victim but did not lodge any complaint
either of them. If the evidence of PW-12 and 16, the other passengers in the compartment is summarised, they heard
according to their words "falling down falling down". PW-6 has stated that he saw a boy lying at the extreme outer of the
5
platform facing the Burdwan and, accordingly, he asked the boy as to why he was lying there; in reply he told that he fell
down from the running train when he was in sleep and he took the victim to Mogra Hospital, although, PW-6 was declared
hostile.
Mr. Basu vehemently argued that the identity of the appellant is in serious doubt and relied upon a decision of the
Hon'ble Supreme Court in the case of Mulla and another vs. State of Uttar Pradesh reported in (2010)2 Supreme
Court Caes (Cri) 1150 where it has been held thus:
" The evidence of test identification is admissible under sectin 9, Evidence Act, 1872. The
identification parade belongs to the stage of investigation by the police. The question whether a witness has
or has not identified the accused during the investigation is not one which is in itself relevant at the trial.
The actual evidence regarding identification is that which is given by witnesses in court. There is no
provision in CrPC entitling the accused to demand that an identificaiton parade should be held at or before
the inquiry in the trial. The fact that a particular witness has been able to identify the accused at an
identification parade is only a circumstance corroborative of the identification in court.
Failure to hold test identification parade does not make the evidence of identification in court
inadmissible, rather the same is very much admissible in law. Where identification of an accused by a
witness is made for the first time in court, it should not form the basis of conviction.
Identification tests do not constitute substantive evidence. They are primarily meant for the
purpose of helping the investigating agency with an assurance that their progress with the investigation
into the offence is proceeding on the right lines. The identification can only be used as corroboration of the
statement in Court.
The necessity for holding an identification parade can arise only when the accused persons are not
previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim
to have seen the culprits at the time of occurrence are to identify them from the midst of other persons
without any aid or any other source. The test is done to check upon their veracity. In other words, the main
object of holding an identification parade, during the investigation stage, is to test the memory of the
witnesses based upon first impression and also to enable the prosecution to decide whether all or any of
them could be cited as eyewitnesses of the crime.
The identification proceedings are in the nature of tests and significantly, therefore, there is no
provision for it in CrPC and Evidence Act, 1872. It is desirable that a test identification parade should be
conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the
possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very
common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no
scope for making such allegation. If however, circumstances are beyond control and there is some delay, it
cannot be said to be fatal to he prosecution."
6
Thus, relying on the aforesaid decision, Mr. Basu submits that identification proceeding do not
constitute substantive evidence and that has to be corroborated by evidence during trial.
We are in full agreement with the submissions of Mr. Basu, learned senior counsel appearing
for the appellant, on this score as in the instant case, test identification parade was not corroborated by
the prosecution witnesses as discussed hereinabove. Therefore, we conclude that question of identity
of the accused appellant is in serious doubt and we do not countenance to the findings and
observations as made by the learned Trial Court in recording the order of conviction and sentence
based on the identity as made by the prosecution witnesses in the test identification parade proceeding.
This fact can also not be lost sight of that test identification parade was held after lapse of almost one
month and such proceeding of test identification parade as to the identify ought not to have relied upon
by the learned Trial Judge as it does not find corroboration by prosecution witnesses in their evidence
during trial.
Mr. Kesri, learned counsel for the State-respondents has agreed upon with the observations in
so far as the identity of the appellant is concerned though he submits that the incident took place when the appellant was on his official duty in the train compartment along with his colleagues although he supports the impugned judgment.
Bestowing upon the anxious consideration to the facts and circumstances of the case and appraising the evidence on record as required by legal parameter in the criminal trial, we hold that the prosecution has not been able to substantiate the charges as levelled against the accused appellant beyond the shadow of reasonable doubt.
Ergo, the judgment of conviction and sentence is liable to be set aside and we, accordingly, set aside the judgment and order of conviction dated 24.02.2015 and 25.02.2015 passed by the Additional Sessions Judge, 1st Court, Hooghly in Sessions Trial No.3 of 2004 arising out of Sessions Case No.205 of 2001.
Thus, we find that the accused appellant, namely, Rakesh Kumar Mishra, is not guilty of the charges levelled against him and he is acquitted thereof and be set at liberty at once on being discharged from his bail bond, if not wanted to in any other case.
The appeal is, thus, allowed.
A copy of the judgment along with the Lower Court Records be sent down to the Trial Court for information and necessary action.
( Rajiv Sharma, J. ) 7 (Shivakant Prasad, J. )