Calcutta High Court (Appellete Side)
Sujit Mitra & Ors vs The State Of West Bengal on 7 May, 2020
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE CHIEF JUSTICE THOTTATHIL B. RADHAKRISHNAN
AND
THE HON'BLE JUSTICE ARIJIT BANERJEE
CRA 49 of 1998
Sujit Mitra & ors.
-vs-
The State of West Bengal
For the Appellants : Mr. Soumopriyo Chowdhury
Mr. Abhishek Gupta
Ms. Ishita Roy.........Advocates
For the State : Mr. Saswata Gopal Mukherjee, Ld.PP
Mrs. Kakali Chatterjee.........Advocate
Heard on : 11.02.2020
Judgment on : 07.05.2020
Arijit Banerjee, J.:
1) This is an appeal against the judgment and order dated 12th February, 1998 passed by the learned Sessions Judge, Coochbehar in Sessions Trial No. 2(6) 96 arising out of Sessions Case No. 97/94, thereby holding the appellants guilty of having committed offences under Sections 302/34 and 201/34 of the Indian Penal Code (for short 'IPC'). The appellants are two (2) out of thirteen (13) accused persons. Nine (9) accused persons were acquitted by the Ld. Trial Judge and four (4) accused persons including the appellants were convicted and sentenced to life imprisonment. Two (2) of the convicts died during the pendency of the appeal.
2) The prosecution case as would appear from the written complaint and the FIR is that the victim Basudeb Ghosh, was going to the house of one Subrata Oraon of village Bara Soulmari on 16th July, 1992 at about 8/9 P.M. On the way there was collision of bicycles between the victim and Swapan Mitra, one of the appellants. A quarrel ensued. Thereafter, when the victim reached the house of Subrata Oraon, Swapan Mitra and other people named in the written complaint brought the victim out from the house of Subrata Oraon, took him in front of the house of Sri Haripada Bardhan and in the presence of Sri Bardhan those people struck the victim with bamboo and iron rods and "picked up his left eye". They also caused serious injury to the victim on his forehead, mouth and chest and left him in an unconscious state in front of the house of Haripada Bardhan. The written complaint was lodged by the elder brother of the victim who stated in his complaint that he came to learn about the incident from Lede Asur of the same village. He went to the place of occurrence but Sudhir Mitra and the other persons named in the written complaint threatened him with dire consequences. Out of fear he ran away from the place. On the next morning at about 10A.M. he came to learn from Lede Asur that the victim "was lying dead inside the garden".
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3) The First Information Report was lodged on 17th July, 1992 at about 3.30 P.M. The charge-sheet was issued on 13th June, 1996, charging the accused persons with commission of offences punishable under Sections 302/34 and 201/34 of the IPC. The charges were read over to the accused persons who pleaded not guilty and claimed to be tried. Accordingly, the trial ensued.
4) The prosecution examined fourteen (14) witnesses. The defence examined none. Statements of the accused persons were recorded under Section 313 of the Criminal Procedure Code (in short 'Cr.P.C.'). The stand of the accused persons including that of the appellants was one of complete denial.
5) The Ld. Trial Judge considered the evidence and held the appellants and two other accused persons guilty of having committed the offences they were charged with. Hence, this appeal. As already stated above, two of the appellants passed away during pendency of the appeal.
6) Before expressing our opinion as regards the impugned judgment and order, let us note the material evidence adduced by the prosecution.
7) PW1, Subhash Chandra Ghosh is the de facto complainant and the elder brother of the victim. In his evidence he reiterated what he stated in his written complaint. He further stated as follows:
"................. On receiving this information, I went to the place of occurrence. There I found that my brother was lying on earth with bleeding injuries. There I found that Swapan Mitra, Sudhir Mitra, Sujit Mitra, Swapan Das, Haran Bhowmik and Jugal Dutta were standing there near the body of my brother. These people were armed with lathi, battom and iron rod. As soon 3 as I arrived at the place these people threatened me with assault. So, I left the place of occurrence out of fear of life.
................. I informed my second brother Subrata Ghosh about the occurrence. Then, myself and Subrata again went to the P.O. At the P.O I found one white colour ambassador car. The number of the motor vehicle was WGU 8171. Till that time those miscreants were standing at the P.O. and they again threatened us. At that time my brother's body was removed about 40 cubits from the place of occurrence where I found him earlier. Being threatened with we returned to our home.
................. I learnt from Lede Asur that my brother Basudeb was murdered and his body was concealed under a bridge in the midst of the Cooch Behar tea garden.
................ On the following morning till Lede Asur came to inform about the hiding of the body of my brother, we were all along in our house. Before going to Ghokshadanga P.S. Station the police of Ghokshadanga came to the place where my brother's dead body was concealed in a vehicle. In that vehicle I went to Ghokshadanga P.S. ................ In my complaint to Ghokshadanga Police Staion. I did not state that on the previous night I had been to Falakata P.S. but that P.S. did not entertain my complaint as the place of occurrence was within the Ghokshadanga P.S............"
He stated that he did not see the occurrence.
8) PW 2 is a resident of Cooch Behar Estate in the Line Quarters. He stated that he did not know anything about the occurrence. Thereupon, he was declared hostile by the prosecution. In his cross-examination by the 4 prosecution he did not in any manner support the prosecution case. Upon being examined by the defence, he stated that he never visited the house of the victim since he was an ill-reputed person. The accused persons are good people.
9) PW 3 is also a resident of Cooch Behar Tea Estate Line Quarters. He was declared hostile by the prosecution. In his cross-examination by the prosecution, he did not support the prosecution case. He further stated: "I do not know the persons who are present on the dock." Upon being examined by the defence he said "I made statement to the Magistrate as instructed by the police."
10) PW 4 is also a resident of Cooch Behar Tea Estate in the Line Quarters. He was also declared hostile by the prosecution and on being cross-examined he did not support the prosecution case. Upon being examined by the defence, he stated: "Police took me to the Magistrate and taught me what I would have to state before the Magistrate. Whatever the Public Prosecutor stated to me alleging my statement before the Magistrate of Mathabhanga Court are not true."
11) PW 5 is a witness to the inquest report prepared by the police. In cross-examination he stated: "I signed in a blank sheet of paper being asked by the police. I cannot say what was written in that piece of paper thereafter."
12) PW 6 is also a resident of Cooch Behar Tea Estate. He was also declared hostile by the prosecution. In his cross-examination by the defence he stated: "Police took me to Mathabhanga Court and instructed me what I would have to say before the Magistrate. As I stated being instructed by the 5 police I do not remember what I have stated at that time. The occurrences mentioned in my statements are not at all true."
13) PW 8 is another brother of the victim. He deposed:
"................ The occurrence took place at night. I cannot state the hour of occurrence definitely. At that time I was in my residence as I was ill. On the next day i.e. on 17th July, 1992 I went to Atpukuri Gram Panchayet Office to collect a bill. On my return from that place I came to know that my brother Basudeb Ghosh had been murdered. It was then 3 P.M. I do not remember who informed me about the occurrence. On hearing that I returned to my home. I did not go to see the dead body of my brother. I cannot say who committed murder of my brother."
14) PW 9 is a witness to the seizure list. In cross-examination, he stated:
"Police asked me to sign on a blank paper. When I signed the paper there was no written object on that paper. I do not know what has been written in that paper after I signed the same."
15) PW 13 is the Investigating Officer. He stated, inter alia, as follows:
"................ I recorded statements of witnesses under Section 161 of the Cr.P.C., prepared sketch map with index.
.............. I collected post mortem report of Basudeb Ghosh from Mathabhanga Sub-Divisional Hospital. The post mortem examination was done by Dr. Pankaj Kr. Roy of Mathabhanga Sub-Divisional Hospital. He is now dead. He died due to motor accident in 1994................."
16) While acquitting nine (9) out of the thirteen (13) accused persons and convicting four (4) accused persons, the learned Trial Judge in the judgment impugned before us, observed, inter alia, as follows: 6
"................ In such a situation, if the parents and inmates of the family of the deceased or the PW 8 did not go to the place of recovery or did not come to the Court to support the prosecution case then every man of ordinary prudence will come to the conclusion that the parent and the family members did not come to Court to depose against the accused persons out of fear of their lives. The PW 8 did not say a single word against the accused persons. That does not go to show that the PW 1 was an unreliable witness. The matter can be viewed from another angle. Conduct of PW 8 and the parents and family members of the deceased go to show to the Court that these people are not normal human beings and, so, PW 8 should not be believed at all.
............... Therefore, ultimately it appears that this allegation of the PW 1 against the accused persons becomes hearsay evidence and on such evidence the Court cannot place any reliance.
................. Therefore, on such analysis, it is found that except the alleged information received by the PW 1 from Lede Asur, there is no other evidence against the seven (7) accused persons Bhabesh Bhadra, Netai Bhadra, Radha Raman @ Khadu, Jiten Dutta, Kajal Mitra, Niranjan Dutta, and Haripada Bardhan. Ultimately, I find there is no legal evidence against these seven (7) accused persons. So, I acquit the accused persons. ................ Now I find that though the signatures of Lede Asur were marked Exts. '2' and '2/1', his statement recorded by the Ld. Judicial Magistrate, First Class, Mathabhanga, on 19.9.1992 has not been marked through mistake of the Bench Clerk. So, I direct that according to the legal provision this statement of Lede Asur recorded by the Ld. Judicial Magistrate, 7 Mathabhanga, in the discharge of his official duty and according to the Section 164 of Cr.P.C. be marked as Ext. '2/2'.
............... Of course, being cross-examined by the defence PW 3 stated: "I made statement to the Magistrate as instructed by the Police." The entire conduct of PW 3 including this statement in the cross-examination shows that he was purchased by the accused persons to give false evidence before the Court in favour of the accused persons.
................. So, I find that this witness PW 1 Subhash Chandra Ghosh is fully reliable witness and even though his evidence has not been corroborated by any other independent witness, the Court can safely rely upon him in convicting the accused persons who were present near his brother's body. However, I find that the names of Swapan Das and Haran Bhowmik stated by this witness have not been mentioned in the Ext. '1' series, i.e., the written complaint made by the PW 1 to the police of Ghokshadanga P.S., therefore, these two persons Swapan Das and Haran Bhowmik are entitled to benefit of doubt.
................. Ultimately, I acquit the accused persons Swapan Das and Haran Bhowmik.
............... Learned P.P. had submitted in his argument that the entire prosecution case stood on circumstantial evidence and there was no eye witness. This is very astonishing, because I must hold that the evidence of PW 1 is the evidence of an eye witness. PW 1 Subhash Chandra Ghosh found the accused persons Swapan Mitra, Sudhir Mitra, Sujit Mitra and Jugal Dutta and others standing near the dead body of the victim Basudeb Ghosh when the victim was bleeding from his injuries. He further found that 8 these accused persons were armed with lathi, battom and iron rod. Therefore, it cannot be said by any stretch of imagination that this part of the evidence of PW 1 Subhash Chandra Ghosh is a circumstantial evidence. I must hold that this evidence of PW 1 is direct evidence of an eye witness which goes a long way to prove the greater part of the prosecution case. ................. Therefore, I find that not only the accused persons have failed to explain this piece of direct evidence against them that they were last seen together with the victim being armed with deadly weapons but also the defence could not explain this piece of evidence against the accused persons during cross-examination of PW 1.
................. But at the time of preparation of judgment it is detected that through inadvertence the post-mortem report has not been marked as an exhibit. In Section 294, sub Section (3) of the Cr.P.C. it has been stated "where the genuineness of any document is not disputed such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed. Therefore, I direct that the post-mortem report be marked as Ext. '11'."
Court's view:
17) The prosecution examined fourteen (14) witnesses. However, out of the material witnesses PW 2, PW3, PW4 and PW 6, were declared hostile by the prosecution and were cross-examined by the prosecution. None of them supported the prosecution case.
18) The judgment and order of conviction is based essentially on the evidence of PW 1 alone. His evidence is that, being informed by PW 3 he 9 reached the place of occurrence around 10. P.M. on the date of the incident, found the victim lying on the ground bleeding from injuries and the accused persons standing in close proximity to the victim armed with iron rods etc. This prompted the learned Trial Judge to consider PW 1 as an eye witness to the alleged incident, although the prosecution case was that there were no eye witnesses and the entire case is based on circumstantial evidence.
Admittedly, PW 1 did not see the accused persons beating up the victim. The learned Trial Judge inferred from the evidence of PW 1, which he believed, that the accused persons must have assaulted the victim who died as a result thereof and whose dead body was then sought to be secreted. The learned Judge held the appellants guilty of the offences they were charged with solely on the basis of the testimony of PW 1. This, in principle, is not impermissible in law. However, before convicting the accused persons solely on the basis of one witness's evidence, the Court has to exercise great care, caution and circumspection.
19) In Anil Phukan vs. State of Asam (1993) 3 SCC 282, at paragraphs 3 and 4 of the judgment, the Hon'ble Supreme Court observed as follows:-
"This case primarily hinges on the testimony of a single eyewitness Ajoy PW 3. Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are 10 some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of PW 3 Ajoy.
Ajoy PW 3, on his own showing, is the nephew of the deceased. He had accompanied the deceased to the place of occurrence when the latter went to recover the loan from Anil, appellant. This witness, therefore, is a relative of the deceased and an interested witness. Of course, mere relationship with the deceased in no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of event, a close relation would be the last person to spare the real assailant of his uncle and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appellant in the crime. Since, there are some doubtful aspects in the conduct of Ajoy PW 3, it would not be safe to accept his evidence without some independent corroboration, direct or circumstantial."
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20) In the present case, certain points are troubling us. Firstly, the alleged incident took place at about 9P.M. According to PW 1, he reached the place of occurrence around 10 P.M. being informed by PW 3. Being threatened by the accused persons he left that place and went to Falakata Police Station at 11.40 P.M. However, his complaint was not received as the place of occurrence was within the jurisdiction of Ghokshadanga Police Station. The surprising thing is that, having allegedly seen his brother lying in a pool of blood with severe injuries and the accused persons standing in close proximity with weapons, PW 1 waited till next mid-day to approach Ghokshadanga Police Station. Even assuming that PW 1 did not go to Ghokshadanga Police Station on the night of the incident because he thought it was unsafe to do so, normal human conduct would suggest that he would go to the appropriate Police Station at the earliest on the next day as soon as the dawn breaks. This conduct of PW 1 makes a dent in his credibility.
21) Secondly, no other person excepting PW 1 deposed that the victim was found lying injured at the place of occurrence and the accused persons standing there with arms/weapons. No weapons were recovered from the place of occurrence or from anywhere else. There is absolutely no corroboration of PW 1's testimony.
22) Thirdly, PW 8 who is another brother of the victim contradicted PW 1. According to PW 1, he and PW 8 went back to the place of occurrence on the night of the alleged incident. This was denied by PW 8. This also has an 12 adverse effect on the credibility of PW 1. It is pertinent to note that PW 8 was not declared hostile by the prosecution.
23) Fourthly, PW 1 deposed that on the night of the alleged incident, after coming back from Falakata Police Station he and PW 8 went to the place of occurrence where he found one white coloured ambassador car. However, what the police seized was a fiat car.
24) Fifthly, it is strange that even after seeing his brother with severe injuries which were bleeding, PW 1 did not make any attempt to save the life of his brother. The alleged incident occurred in a tea garden area where there would be a large number of workers. It is surprising that PW 1 did not raise alarm or seek assistance of other local people.
25) Sixthly, no credible motive has been attributed by the prosecution to the accused persons for allegedly assaulting the victim who succumbed to the injuries. According to PW 1, there was a bicycle collision between one of the accused persons and the victim which led to an altercation between them. Soon thereafter, the alleged incident occurred and it was a fall out of such altercation. According to the learned PP, the victim had a bad reputation in the locality and that was the motive for murdering him. None of these explanations seem convincing to us. It is true that finding a motive for committing a crime is not a precondition for holding an accused person guilty. However, motive becomes important in many cases and, particularly, in a case based on circumstantial evidence.
26) The learned Trial Judge heavily relied on the statements of PW 3 and PW 4 recorded under Section 164 of the Cr.P.C. Both PW 3 and PW 4 were declared hostile by the prosecution. A statement recorded under Section 164 13 of the Cr.P.C. is not a substantive piece of evidence and can only be used for corroboration and contradiction. If a witness during the course of his substantive deposition in Court denies the contents of the statement recorded under Section 164 of the Cr.P.C., such statement cannot be relied upon. In the instant case, both PW 3 and PW 4 denied having made the statements which were recorded under Section 164 of the Cr.P.C. In the course of the trial, their statements were not marked as exhibits. The learned Magistrate, who recorded their statements under Section 164 of the Cr.P.C. was not examined by the prosecution. The learned Judge marked the said two statements as exhibits after conclusion of the trial, at the time of delivery of judgment. Learned counsel for the appellants is justified in submitting that this ought not to have been done. He further pointed out that no question was put to the appellants in course of their examination under Section 313 of Cr.P.C. regarding the statements of PW 3 and PW 4 recorded under Section 164 of the Cr.P.C. Without doing so, the statements were used against the appellants which is impermissible in law.
27) The learned Judge has placed considerable reliance on the post- mortem report. The post-mortem was conducted on 18th July, 1992. The doctor who conducted such post-mortem apparently died in a motor car accident in the year 1994, as per the deposition of PW 13. The learned Trial Judge admitted such report into evidence relying on Section 294 of the Cr.P.C. and that too, at the time of delivery of judgment. Neither the doctor who prepared the post-mortem report nor any person who is acquainted with the hand-writing of the doctor was examined to prove the report. Section 294 of the Cr.P.C. reads as follows:-
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"No formal proof of certain documents.
1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
2) The list of documents shall be in such form as may be prescribed by the State Government.
3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: Provided that the Court may, in its discretion, require such signature to be proved."
28) Formal proof of a document can be dispensed with in the circumstances mentioned in the aforesaid Section. However, in the facts of this case, it appears that none of the essential requisites mentioned in Section 294 has been complied with. Learned counsel for the appellants rightly raised a grievance that no opportunity was granted to the defence either to admit or object to the contents of the post-mortem report before such report was made a part of the evidence on the strength of Section 294 of Cr.P.C. Further, it appears that the learned Judge has accepted a carbon copy of the post-mortem report without requisite certificate as regards non availability of the original. This is also contrary to the provision of Sections 15 64 and 65 of the Evidence Act. We agree with the submission of learned counsel for the appellants that in view of the post-mortem doctor not being examined and/or any authenticated copy of the post-mortem report not being produced by any competent person from the concerned hospital, neither the prosecution nor the learned Trial Judge could have relied upon the observations made in the said report. In this connection, one may refer to the observations of the Hon'ble Supreme Court at paragraph 19 of the judgment in the case of Vijender vs. State of Delhi (1997) 6 SCC 171, which reads as follows:
"It passes our comprehension how the trial Judge entertained the post-mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr. U.C. Gupta, who held the post-mortem examination. It is of course true that in an exceptional case where any of the prerequisites of Section 32 of the Evidence Act is fulfilled a post-mortem report can be admitted in evidence as a relevant fact under sub-section (2) thereof by proving the same through some other competent witness but this section had no manner of application here for the evidence of PW 21 clearly reveals that on the day he was deposing Dr. Gupta was in that hospital. The other reason for which the trial Judge ought not to have allowed the prosecution to prove the post-mortem report is that it was not the 16 original report but only a carbon copy thereof and that too not certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof. Since the copy of the port-mortem report did not come within the purview of any of the clauses of Section 65 it was not admissible on that score also."
Reference may also be made to a Division Bench decision of this Court in the case of Arjun Mandi vs. The State (1998) C CRLR (CAL) 138 wherein it was held that unless the requirements stipulated in Section 294 of the Cr.P.C. are scrupulously adhered to the said Section cannot be pressed into service for dispensing formal proof of a document.
29) Even if we were to accept the post-mortem report as part of substantive evidence, the injuries mentioned therein do not appear to be such as to be the cause of death. No medical expert evidence explaining the nature of injuries has been adduced. The injuries mentioned in the post- mortem report do not appear to be such as are sufficient in the ordinary course of nature to cause death. Even assuming that the accused persons assaulted the victim, the possibility that the victim did not die because of the injuries recorded in the post-mortem report cannot be ruled out.
30) The aforesaid matters raise a lurking doubt in our mind about the correctness of the judgment and order under appeal. It is trite law that if reasonable doubt arises in the mind of the Court as regards the guilt of the accused, the benefit of such doubt must be given to the accused. We have carefully considered the evidence on record and the judgment under appeal. 17 We are unable to agree with the learned Trial Judge's assimilation of the evidence on record. A judgment cannot be based on conjectures and surmises. For example, the learned Judge came to a conclusion that PW 2, PW 3, PW 4 and PW 6 turned hostile and other family members of the victim did not come forward to depose for the prosecution since they must have been threatened with dire consequences by the accused persons, although there is no evidence on record to support such a finding. This is speculative in nature. Speculations ae not permitted in the judgment of a Court of law.
31) Another factor which weighs with us is that there were thirteen (13) co-accused persons. On the basis of the same set of evidence nine (9) were acquitted. It is not spelt out in the judgment under appeal as to how the four (4) persons who were convicted stood on a different footing. There is nothing significant in the evidence on record which could prompt the learned Judge or which persuades us to single out four (4) persons out of thirteen (13) for conviction.
32) For the reasons aforestated, we are of the view that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt. The appellants are entitled to the benefit of doubt. The judgment and order under appeal are set aside.
33) We are told that the appellants are on bail. The bail bonds shall continue to be in force for a period of six months from date. Let the records of this case be placed before the learned Trial Court for passing necessary orders in the light of this judgment.
34) CRA 49 of 1996 is, accordingly allowed.
18 Urgent photostat certified copy of this judgment/order, if applied for, be supplied to the parties upon compliance of all requisite formalities. (Arijit Banerjee, J.) (Thottathil B. Radhakrishnan, CJ.) 19