Calcutta High Court (Appellete Side)
Jagannath Mondal vs The State Of West Bengal on 21 September, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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.85 of 2008
Jagannath Mondal
Versus
The State of West Bengal
With
CRA No.103 of 2008
Nanku Mondal & Ors.
Versus
The State of West Bengal
For the appellants : Mr. Milon Mukherjee
Ld. Sr. Advocate,
Mr. Usof Ali Dewan,
Mr. Rahul Ganguly,
Mr. Asif Dewan
For the State : Mr. Ranabir Roy Chowdhury
Mr. Mainak Gupta
Heard on : 05/07/2017, 11/07/2017, 14/07/2017 & 18/07/2017
Judgment on: 21/09/2017
Debasish Kar Gupta , J. :
This appeal is directed against judgment and order of conviction dated January 22, 2008 and sentence dated January 24, 2008 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Jangipur in Sessions Trial No.17(4)/2004 arising out of Sessions Serial No.11/2004 convicting the appellants for commission of offence punishable under Section 302/34 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentencing each of them to suffer rigorous imprisonment for life and to pay a fine of Rs.20,000/- each in default to undergo rigorous imprisonment for another 5 (five) years each. According to the prosecution case, in a nutshell, on January 10, 1997, at about 7.30 hours one Sitaram Mondal (since deceased), village-Radhanagar, Police Station-Raghunathganj, District-Murshidabad, started proceeding towards Tahabazar Market of Jangipur, District-Murshidabad, riding on a bicycle for selling brinjals in the market. His son Indra Mondal (PW1) was following him taking brinjals in a basket. When the aforesaid Sitaram Mondal (since deceased) reached in front of the shop of selling "Tadi" at Mahabirtala, the appellants hurled bomb aiming at him. The aforesaid Sitaram Mondal fell down on the ground and breathed his last. The appellants fled away. Since the appellants were carrying bombs in their hands, the PW 1 could not catch hold of them.
A written complaint dated January 10, 1997 was lodged by the PW 1 in Raghunathganj Police Station at 08.20 hours. PW 6 was the scribe of the above written complaint. Formal FIR bearing Raghunathganj P.S. Case FIR No.6/97 was drawn on the aforesaid date, i.e. on January 10, 1997, after making an entry in the General Diary of the above police station bearing No.402 against the appellants for commission of offence punishable under Sections 302/34 I.P.C.
PW 8 was engaged as Investigating Officer of the above case. He reached the place of occurrence on the same day i.e. on January 10, 1997, at 8.20 hours. He prepared the rough sketch map of the place of occurrence. He conducted the inquest examination over the dead body of the aforesaid deceased person in presence of PW 1, PW 2 and PW 6 and according to their identification. The aforesaid 3 (three) prosecution witnesses were the signatories to the inquest report prepared by the PW 8. According to the preliminary investigation, as incorporated in the above inquest report, a few persons, who belonged to the opposite party of the deceased person, hurled bombs aiming at the aforesaid deceased person successively when he reached near the shop selling "Tadi" at western bank of river Bhagirathi riding on a bicycle with a sack of brinjals on January 10, 1997 at 7.30 hours. The PW 8 sent the dead body of the deceased to Jangipur Sub-Divisional Hospital through Home Guard No.1447 attached to Jangipur Police Station, District-Murshidabad (PW 5) for post mortem examination. He seized some articles from the place of occurrence on the aforesaid dated under a seizure list.
PW 7 conducted the post mortem examination over the dead body of the deceased and prepared post mortem report dated January 10, 1997 at 13.00 hours with reference to the Raghunathganj P.S. Case No.6/97 dated January 10, 1997. According to the above post mortem report, the following injuries were detected over the dead body of the deceased:-
(i) Grossly lacerated wound surrounded by blakish dis colouration over posterior aspect of head and neck due to cervical vertebra;
(ii) Fracture of oxipetal bone and brain matter coming outside;
(iii) One lacerated wound 5" x ½" peritonial cavity transversely over both hips.
According to the opinion of PW 7, the cause of death was due to shock and hemorrhage resulting from the aforesaid injuries which were ante mortem and homicidal in nature.
The PW 8 could not complete the investigation due to his transfer from the aforesaid police station. Consequent upon his transfer, PW 9 conducted further investigation in the matter with effect from June 21, 1997. He submitted Raghunathganj P.S. charge sheet No.194 dated November 30, 1997 against the appellants for commission of offence punishable under Section 302/34 I.P.C.
After considering the oral evidence of 9 (nine) prosecution witnesses, the other documentary evidences and the statements of the appellants recorded under Section 313 Cr.P.C. the impugned judgment, order of conviction and sentence were passed.
It is submitted by Mr. Milon Mukherjee, learned Senior Advocate appearing on behalf of all the appellants, that the prosecution failed to prove the commission of offence in the manner in which the commission of offence was sought to be projected. According to him, the FIR was forwarded to the Court of learned Judicial Magistrate concern after a delay of more than 48 hours. No reason was assigned before the Court for delay in forwarding the FIR and even prosecution led no evidence at all in this behalf.
It is further submitted by him that the gist of statements though PW 1, PW 2 and PW 6 were witnesses of the inquest report, the names of the appellants did not appear in the report. According to him, this was a matter of suspicion that the inquest examination over the dead body of the deceased started within 10 minutes after drawing the formal FIR.
It is also submitted by Mr. Mukherjee that though according to the prosecution case the cause of death of the deceased was receiving of injuries due to explosion of bombs. No charge was framed against the appellants for violation of the provisions of Explosive Substance Act.
According to Mr. Mukherjee, though wearing apparels of the deceased person and some materials were seized from the place of occurrence by the I.O., those were not sent for obtaining report from the Forensic Science Laboratory.
It is also submitted by Mr. Mukherjee that there were also contradictions in between the evidence of the purported eyewitnesses touching the root of the prosecution case. Therefore, according to Mr. Mukherjee, the impugned judgment, order of conviction and sentence cannot be sustained in law.
Reliance is placed by Mr. Mukherjee on the decisions of Meharaj Singh vs. State of U.P., reported in (1994) 5 SCC 188, Thanedar Singh vs. State of M.P., reported in (2002) 1 SCC 487, Mobarak Sk. @ Mobarak Hossain vs. The State of West Bengal, reported in (2011) 1 C Cr. LR (Cal) 687 and an unreported judgment dated August 11, 2016 passed by this Division Bench in the matter of Asraf Biswas vs. The State of West Bengal (in re: CRA 840 of 2013) in support of his above submissions.
On the other hand, it is submitted by Mr. Ranabir Roy Chowdhury, learned State Advocate that the drawing up of FIR and preparation of inquest report were done on the date of occurrence of the unnatural death of the deceased. It is submitted by Mr. Roy Chowdhury that PW 1, PW 2 and PW 6 were the witnesses of the inquest report. All of them stated while adducing evidence in Court that the involvement of the appellants in commission of offence had been duly informed to the police. So, the prosecution case should not suffer due to any laches and/or fault on the part of the investigating officer.
According to Mr. Roy Chowdhury, that the prosecution case as revealed from the evidence of eyewitnesses was corroborating with the post mortem report with regard to the cause of death of the deceased in the manner in which the prosecution case sought to be projected and as such the impugned judgment, order of conviction and sentence does not require our interference.
We have heard the learned counsel appearing for the respective parties at length and have also considered the facts and circumstances of this case on the basis of the evidence on record. The prosecution case that the deceased Sitaram Mondal died a homicidal death is not in dispute. According to the evidence of PW 7, the autopsy surgeon, he found three injuries on the person of the deceased and according to him the above injuries were anti mortem and homicidal in nature and it was not disputed by the defence that the above injuries was the cause of death of the deceased.
One of the main argument for casting doubt in respect of the prosecution case is this, after lodging the FIR naming the appellants as the assailants, the PW 8, the Investigating Officer, came to the place of occurrence and held inquest examination. In the inquest report it was noted that the deceased was assaulted by "a few persons", who belonged to opposite party of the deceased person. The FIR maker, PW 1 and PW 2, who claimed to be one eyewitnesses, were witnesses of the above inquest report. It was also not in dispute that there was delay of 48 hours in forwarding the FIR to the court.
Taking into consideration the settled principles of law as decided by the Hon'ble Supreme court in the matter of Meharaj Singh (supra) which was repeated and reiterated by a three Judges Bench of the Apex Court in Thaneder Singh (supra), this bench delivered a judgment dated August 11, 2016, in CRA No. 840 of 2013 ( in re : Asraf Biswas vs. The State of West Bengal & others with CRA No. 892 of 2013 (in re: Jahiruddin Molla & Others vs. The State of West Bengal & Others) taking into consideration the facts and circumstances involved in the above appeal by quashing and setting aside the order of conviction. For the purpose of ascertaining the scope of granting relief to the appellants in the case in hand applying the above settled principles of law in the facts and circumstances of the case in hand, the relevant portion of the above decision is quoted below:-
"According to the prosecution case, amongst the four (4) witnesses of the inquest report, PW 3 and PW 4 claimed to be the eyewitnesses of the death of the victims. According to the evidence of PW 2 in examination-in-chief, he had witnessed the killing of the aforesaid deceased persons by the appellants. In course of cross-examination he deposed that he had disclosed the name of the assailants of the deceased persons before the PW 13. Though he had not witnessed the murder of the victims, he arrived at the place of occurrence immediately after the murder of the victims took place. PW 7 had reached the place of occurrence before the police party arrived there on the date of occurrence. In course of cross-examination, the PW 13 deposed that he need not record the name of any accused person in the inquest report if there was disclosure of any name of accused person by any witness of the inquest report. But the names of the appellants were not recorded in the inquest reports at the time of recording preliminary history of unnatural deaths.
In Jaharlal Das vs. State of Orissa, reported in (1991) 3 SCC 27, the Hon'ble Supreme Court took note of the similar fact observed that though the purpose of inquest report was only to ascertain the cause of death at least the fact relating to discovery of the dead body disclosed in the FIR should be mentioned in inquest report. The relevant portion of the above decision is quoted below:-
"10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . According to this evidence the accused is alleged to have been taken PW 11 and others to the open paddy field where the dead body was lying. It is only thereafter that the inquest report was drawn up. However, PW 11 stated in his evidence that before going to the paddy field the FIR Ex. P. 10 was drawn up by him. Surprisingly we find a mention about the discovery of the body in the FIR itself. But the same is not found in the inquest. There is not even a reference to the accused in the column No.9 of the inquest report where the information of witness as to the cause of death has to be noticed. We are aware that the purpose of inquest report is only to ascertain the cause of death but in a case of this nature there should have been at least a mention in the inquest report as to how the body was discovered."
Therefore, taking into consideration the facts and circumstances of the instant case we are of the opinion that the learned Court below failed to take note of the above infirmity which was an alarm for him to examine the prosecution case on the basis of the available evidence more cautiously.
The aforesaid observation leads us to another peculiar fact of this case that though the FIR was lodged on the date of incident, i.e. on June 20, 1998 at 18.35 hours, it was placed before the Court of learned Sub-Divisional Judicial Magistrate on June 26, 1998.
In Meharaj Singh vs. State of U.P., reported in (1994) 5 SCC 188, the Hon'ble Supreme Court as follows:-
"12. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."
The above proposition of law was repeated and reiterated by a three Judges Bench of the Hon'ble Supreme Court in Thanedar Singh vs. State of M.P., reported in (2002) 1 SCC 487 with the observation that failure to send the FIR to the Court of learned Magistrate at an inordinate delay having no explanation for the same cast doubt about the prosecution case so far as the place and time of occurrence and the manner in which the death of the victims claimed to have been taken place."
But in the case in hand we find distinguishable features based on evidence on record as follows:-
i) The inquest report was prepared with reference to the FIR bearing Raghunathpur P.S. Case No. 6/97 dated January 10, 1997, under Section 302/34 I.P.C. and Sections 3/4 of Explosive Substance Act.
ii) Though names of the appellants did not surface from the inquest report, it was recorded in the report that it had been learnt from the primary investigation a few person belonging to the opposite party of the deceased person successively hurled a few bombs on him.
iii) Though the PW 8, first investigating officer who had prepared inquest report, stated in course of cross examination that neither the PW 2 nor the PW 6 told the name of any assailant of the deceased at the time of inquest examination of the deceased, the PW 2 categorically stated in course of cross examination that he had stated the Investigating officer at the time of inquest examination the names of the accused persons who had hurled bombs on the deceased. PW 1 also deposed in course of cross examination that at the time of preparation of inquest report PW 2, PW 3 and PW 4 told the police about the incident and the names of the accused persons who had hurled bomb on the deceased. There was corroboration of the above evidence with that of the PW 4.
It cannot be ignored by us at this juncture that some articles including remnants of bombs had been seized by the PW 8, first investigating officer, from the place of occurrence as also the blood stained wearing apparels of the deceased. During cross examination he disclosed that no seized article had been send to forensic laboratory for examination. How the Court can accept the evidence of the PW 8 as wholly reliable considering his aforesaid conduct?
In C.M. Sharma vs. State of A.P., reported in (2010) 15 SCC 1, it was observed by the Hon'ble Supreme Court that on appreciation of evidence, witnesses can be broadly categorised in three categories Viz. unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence.
After overall consideration of the evidence of aforesaid witnesses, we are of the opinion that if the relevant evidence of PW 1, PW 2, PW3 and PW 4 adduced in course of cross examination are pitted against that of the PW 8 in this regard, the Court must accept the evidence of PW1, PW 2, PW 3 and PW 4 applying the settled principles of law as discussed herein above.
The decision of Mobarak Sk (supra) does not help the appellants in view of the distinguishable facts and circumstances of this case.
Further, with regard to the suspicion of the appellants in starting inquest examination over the dead body of the deceased within ten minutes after drawing FIR, the same, in our opinion, was a minor discrepancy which should be ignored after overall assessment of the evidence of PW 1, PW 2, PW 4 and PW 6 in this regard. According to PW 1, police arrived at the place of occurrence on the date of the incident at 8.00 hours. According to PW 2, police arrived at the place of occurrence on the date of incident on receipt of information from PW1. According to the evidence of PW 3, PW 4 and PW 6, the inquest examination over the dead body of the deceased took place in their presence.
With regard to the next contention of the appellants that no charge was framed for commission of offence violating the Explosive Substance Act, provisions of Sections 211 and 212 Cr.P.C. purports that a charge is a written notice of the precise and specific accusation against him which an accused is required to meet. The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. But at the same time provisions of Sections 215 read with 464 Cr.P.C. purports that there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such awareness of the accused can be inferred from the defence, i.e., if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge. Reference may be made to the decision of the Apex Court in the matter of Main Pal vs. State of Haryana, reported in AIR 2010 SC 3292, and the relevant portion of the above decision is quoted below:-
"9. The following principles relating to sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations:
(i) . . . . . . .
(ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge.
(iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself.
(Emphasis supplied) Coming back to the instant case, according to the charge framed against the appellants, on January 10 1997, at about 7.30 hours at Mahabir Tata in front of a country liquor shop under Raghunathgunj P.S., the appellants did commit murder by intentionally causing the death of Sitaram Mondal by hurling bomb on his body in furtherance od common intention. The contents of charges were read over and explained to the appellants who pleaded not guilty and claimed to be tried. While recording the statements of the appellants under Section 313 Cr.P.C., the incriminating circumstances as evident from the evidence on record, including the incident of death of the deceased as a result of hurling bomb on him by the appellants, were placed before the appellants. So, the appellants participated in the trial having knowledge with certainty and accuracy, of the exact nature of the charge against them. Though the appellants were aware of the error, they faced the trial. So, their defence was not prejudiced applying the above settled principles of law in the facts and circumstances of this case.
The next contention of the appellants is relating to the effect of failure on the part of the I.O. to send the seized articles including the wearing apparels of the deceased to forensic laboratory, it the settled principles of law that the prosecution case cannot be completely thrown out and it would not be fatal when the case is fully established from the direct testimony of the eye witness and corroboration of the same with the medical evidence. Reference may be made to the decision of Amar Singh vs. Balwinder Singh, reported in (2003) 2 SCC 518 and relevant portion of the above decision is recorded below:-
"15. . . . . . . . The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot Karnel Singh v. State of M.P. it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav v. State of Bihar while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar when this Court observed that in such cases the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice. . . . . . . ."
The above proposition of law is repeated and reiterated by the Apex Court in Promode Dey vs. State of West Bengal, reported in (2012) 4 SCC 559, with the observation that non-collection of FSL report may be a defect in the investigation but a defect in investigation cannot result in acquittal of an accused against whom enough evidence is available for conviction.
Coming back to the case in hand, as discussed hereinabove, the prosecution case was based on the evidence of eye witnesses, namely PW 1, PW 2 and PW 4. The above evidences were corroborating with the post mortem report prepared by the PW 7, the autopsy surgeon. So, the above defect does not help the appellants in any way.
These appeals are, therefore, dismissed.
Let this judgment together with the Lower Court's records be sent back to the learned Court below expeditiously.
Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)