Calcutta High Court (Appellete Side)
Kalu Roy @ Dilip & Anr vs The State Of West Bengal on 22 November, 2017
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
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. 407 of 2009
Kalu Roy @ Dilip & Anr.
Vs.
The State of West Bengal.
For the appellant no.2 : Mr. Milon Mukherjee, ld. Sr. Adv.
Mr. Rahul Ganguly, ld. Adv.
For the appellant no.1
: Mr. Jayanta Narayan Chatterjee, ld. Adv.
Mr. Balaram Sardar, ld. Adv.
Mr. Apalak Basu, ld. Adv.
Mr. Dwaipayan Biswas, ld. Adv.
Ms. Jolly Dey, ld. Adv.
Mr. Amit Biswas, ld. Adv.
Ms. Moumita Pandit, ld. Adv.
Mr. Tirthankar Dey, ld. Adv.
Ms. Priyanka Ghosh Chowdhury, ld. Adv.
Mr. Emon Bhattacharya, ld. Adv.
: Mr. Ranabir Roychowdhury, ld. Adv.
For the State
Mr. Mainak Gupta, ld. Adv.
Heard on : 18.07.2017, 19.07.2017, 24.07.2017, 25.07.2017,
26.07.2017, 27.07.2017, 28.07.2017, 31.07.2017, 01.08.2017,
02.08.2017, 03.08.2017, 04.08.2017, 7.8.2017, 8.8.2017.
Judgment on : 22.11.2017
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellants assailing the judgment and order of conviction and sentence dated February 26,2009 and February 27,2009 respectively passed by the learned Additional Sessions Judge, Bongaon, North 24-Parganas in Sessions Trial No. 1(12)08 arising out of Sessions Case No. 1(11)07. By virtue of the impugned judgment appellants were convicted and sentenced to suffer imprisonment for life and to pay a sum of Rs. 1,000/- each in default of which each of them to suffer rigorous imprisonment for one month for commissioning of the offence punishable under Section 302/120B of the Indian Penal Code (hereinafter referred to as IPC).
The case of the prosecution, in brief, is as follows:
On June 10, 2007, one telephonic information regarding the death of the victim, Subhas Biswas was received by Officer-in-charge of the Gopal Nagar P.S. (P.W.25). He then after diarizing the said information in the P.S register instructed S.I. Gopal Chandra Naskar (P.W.23) to proceed to that place and investigate the matter. Thereafter, both P.W.23 and P.W.25 proceeded to the place of occurrence and on reaching there they found the dead body of the victim lying in a bleeding condition. One written complaint was then handed over by P.W.1 to P.W.25, stating therein that on that date at about 7.30 p.m. his deceased father Subhas Chandra Biswas set out from his STD booth at Akaipur market to his house at Aitpara by riding a motor cycle bearing No. WB - 26/8228. Thereafter, at about 7.50 p.m. he heard a sound of firing bullet and bomb blast and came to learn that his father had been murdered. He then proceeded towards his house along with some local people and when they reached near the house of Chitta Biswas, he saw his father lying dead with fatal bleeding injuries. It was his firm belief that Dilip (Kalu) Roy, Sanjit Roy, Jharu Roy and Kamal Hossain who set out towards his village by cycle 05 minutes before the departure of his father and who used to intimidate his father to murder him have murdered his father with the assistance of others by bombs, bullets and sharp cutting weapons.
On receipt of the said complaint, P.W.25 forwarded it to Gopal Nagar P.S. through constable Biswanath Mukherjee for starting a case and accordingly Gopal Nagar P.S. Case No. 134 dated June 10, 2007 under Section 302/34 IPC, 25/27 Arms Act and 9(B) of the Indian Explosive Act was started against the appellant Sanjit Roy, one Jharu Roy, Dilip Roy @ Kalu, Kamal Hossain and unknown others by ASI Provash Bhattacharjee.
P.W.23 held inquest over the dead body of the victim in presence of P.W.5, P.W.10, P.W.24 and one Arijit Kumar Mondal and thereafter dead body was sent to the Bongaon Sub-Divisional Hospital through P.W.20 along with dead body challan for post mortem examination.
Post-mortem examination over the dead body of the victim was conducted by P.W.16, Dr. Dipak Maitra on June 11, 2007 and during post-mortem examination he found two gunshot wounds measuring 1/3'' x 1/3'' each one above the other just above the right ear (over parietal bone being wound of entry and one wound of exit (of two entry) measuring 3/4'' x 3/4'' x 1½'' posterior to it (wound of exit) another gunshot wound over left axilla, wound of entry measuring 1/3'' x 1/3'' and wound of exit over right axilla measuring 3/4'' x ¾',incised wound over right anterior abdominal wall measuring about 4'' x 1½'',three incised wounds over right shoulder back (back of the right shoulder) one above another all measuring 3'' x ½'',both lower lobe of lung pierced by bullet and free blood present in thorax chest cavity of diaphragm and death in the opinion of the doctor was due to cardio respiratory failure which was due to severe haemmorrhage and shock due to above injuries, homicidal and ante mortem in nature. According to the doctor the above injuries were sufficient to cause instantaneous death of a person.
P.W.23 also took up investigation of the case and during investigation seized the motor cycle, some blood smeared brick chips with earth, plain brick chips with earth, a portion of wooden butt of katari, remnants of bomb materials, one blood stained bullet head, three 8 mm empty cartridges from the place of occurrence by a seizure list in presence of witnesses and also examined the complainant and other witnesses and thereafter made over the case diary to P.W.25 for further investigation. P.W.25 then investigated the case and thereafter on completion of investigation submitted charge sheet bearing No. 146 dated August 31, 2007 under Section 302/379/411/120B/34 IPC against 15 accused persons including the appellants showing them and others namely Mukhtar @ Moktar Mondal, Miraj Mondal, Md. Malek Mondal @ Khalek, Sawkat Mondal, Pintu Roy, Madhabi Roy, Sanjit Roy, Rejaul Mondal @ Reja Bokra, Pralay Roychoudhury @ Puchke, Jharu Roy @ Prasanta, Billal Mondal, Ruhul Amin Mondal @ Rulu @ Rul Amin, and Provat Biswas. Accordingly, after issuance of warrant, proclamation and attachment case was filed for the present against the appellants and accused Jharu Roy @ Prasanta, Billal Mondal, Ruhul Amin Mondal @ Rulu @ Rul Amin, and Provat Biswas on September 3, 2007.
Subsequently a supplementary charge sheet bearing No. 231 dated December 19, 2007 was submitted under Section 25/27/35 Arms Act against Sawkat Ali Mondal, Miaraj Mondal @ Mia and Malek Mondal @ Khalek.
Thereafter, after framing of charges trial being No.1(1)2008 proceeded against Mukhtar @ Moktar Mondal, Miraj Mondal, Md.Malek Mondal @ Khalek, Sawkat Mondal, Pintu Roy, Madhabi Roy, Sanjit Roy, Rejaul Mondal @ Reja Bokra and Pralay Roychoudhury @ Puchke which ended in their conviction on August 29, 2008 and they were sentenced accordingly on August 30, 2008. Subsequently, these appellants were produced in custody to face the trial.
On December 2, 2008 charge was framed against the appellants under Section 302/120B/379 IPC and after their denial of their involvement in the crime, trial commenced.
Prosecution examined 25 witnesses and also produced and proved certain documents and thereafter on completion of trial and after examination of the appellants under Section 313 Cr.P.C. learned trial Judge passed the impugned judgment.
It is submitted by Mr. Milon Mukherjee, learned senior advocate appearing for the appellant no.2 that the impugned judgement, order of conviction and sentence cannot be sustained in law as the FIR was anti- dated and the delay of four days in sending the FIR to the court had not been explained. Even the GDE in question which was recorded after getting information of the incident was not produced nor the UD case which was recorded before the lodging of the complaint which casts doubt with regard to the prosecution story.
According to Mr. Mukherjee, incident in question took place in the dark night and there was no electricity light at the place of occurrence and the torch lights by which appellants were reportedly identified were not seized and even the inquest report was silent with regard to the history of the incident and the involvement of the appellants in the commission of the alleged offence which completely demolishes the prosecution case According to Mr. Mukherjee, FIR was completely silent with regard to the alleged theft of the bag of the victim as also with regard to alleged conspiracy and so also the inquest report though P.W.1 and P.W.5 had the knowledge of the same but even then they did not say so to the I.O. during investigation which clearly shows that it was an afterthought.
According to Mr. Mukherjee, the incident as projected by the prosecution did not occur in the manner, time and place.
Reliance is placed by Mr. Mukherjee on the decisions of Mehraj Singh (L/Nk) Vs. State of U.P. with Kalu Vs. State of U.P. and Others reported in (1994)5 Supreme Court Cases 188, Thanedar Singh Vs. State of M.P. reported in (2002) Supreme Court Cases 487, Mobarak Sk @ Mobarak Hossain and Others Vs. The State of West Bengal reported in (2011)1 C Cr LR (Cal)687 and an unreported judgement in the matter of Asraf Biswas Vs. State of West Bengal (CRA 840 of 2013) with Jaahiruddin Molla and Others Vs. State of West Bengal (CRA 892 of 2013) in support of his submissions.
It is submitted by Mr. Jayanta Narayan Chatterjee, learned advocate appearing for the appellant no.1 that there was a doubt with regard to the identification of the appellants in the dark night and the source of light by which appellants were reportedly identified by the witnesses was not seized.
According to Mr. Chatterjee, inquest report did not contain any history nor has disclosed the name of the appellants and the motive behind the murder of the victim, as claimed by the prosecution witnesses, was not proved beyond doubt. According to Mr. Chatterjee, involvement of the appellants in the commission of the alleged offence was not proved beyond reasonable doubt.
Reliance is placed by Mr. Chatterjee on the decisions of State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru reported in 2005 SCC (Cri) 1715, State (Government of NCT of Delhi) Vs Nitin Gunwant Shah reported in (2016) 1 SCC (Cri) 361,State of Gujrat Vs. Kishanbhai and Others reported in (2014)5 SCC 108, Baliya Alias Bal Kishan Vs. State of Madhya Pradesh reported in (2013) 1 C.Cr.L.R. (SC) 1 and an unreported judgement in the matter of State of West Bengal Vs. Md. Jamiluddin Nasir and Others passed in CRA 425 of 2005 in support of his submissions.
Mr. Ranabir Roy Chowdhury, learned advocate appearing for the State submitted that FIR was lodged on the same day, seizure and inquest was also held on the same date in connection with the Gopal P.S. Case and on the very next date FIR was forwarded before the Magistrate but unfortunately same was placed before the Magistrate only on June 14, 2007 but mere delay in placing the FIR before the Magistrate was not fatal for the prosecution case.
According to Mr. Roy Chowdhury though there was darkness at the place of occurrence but the appellants were identified by the witnesses in the torch lights but due to fault of the I.O. in not seizing the torch light prosecution case will not suffer.
According to Mr. Roy Chowdhury appellant Kalu and his brothers harboured ill feeling towards the victim and threatened to murder him suspecting his role for the arrest of Kalu in connection with the murder case of Budo and accordingly they along with other accused persons in furtherance of their common intention and conspiracy committed the offence of murder. According to him appellants were absconding since after the crime which proves their guilty mind.
Reliance is placed by Mr. Roy Chowdhury on the decisions of Shyamal Ghosh Vs. State of West Bengal reported in 2012 (7) SCC 646, Kulwinder Singh Vs. State of Punjab reported in 2015 (6) SCC 674 and Firozuddin Basheeruddin Vs. State of Kerala reported in 2001(7) SCC 596 in support of his submissions.
We have considered the submissions advanced by learned Counsels for both sides. We have also given our thoughtful consideration to the evidence of the prosecution witnesses and other materials-on- record for examining the propriety of the impugned judgement, order of conviction and sentence passed by the learned court below.
It was not in dispute that the victim, Subhas Chandra Biswas, died on June 10, 2007 and his death was unnatural. It was evident from the evidence of the doctor (P.W.20) and the PM report (Ext.12) that on June 11,2007 during post mortem examination, doctor found three gunshots injuries two above right ear over parietal bone and one over left axilla and four incised wounds, one over right anterior abdominal wall and three on the back of the right shoulder on the person of the victim and in the opinion of the doctor death was due to cardio respiratory failure which was due to severe haemorrhage and shock due to the above injuries which was homicidal and ante mortem in nature. Interestingly he was not challenged by the defence on this score. Defence did not dispute or deny the injuries found on the person of the victim by the doctor, P.W.20, on June 11, 2007 at the time of conducting post-mortem examination and/or the cause of his death.
The history behind the gruesome murder of the victim, as narrated by P.W.1, was that during tenure of his father, the victim, as secretary of ICDS and Sishu Shiksa Kendra, accused Pintu Roy's father gifted 05 decimals of land to the government West Bengal on behalf of ICDS Centre which Pintu was was not willing to accept as he was under the impression that only 2 decimals of land had been gifted by his father. Accordingly, when the victim and other villagers went for raising construction over the land in question there was a quarrel and a case was also filed by Pintu against the victim and thereafter Pintu, Madhabi and other accused persons threatened to murder his father if he raised any construction on that land. Madhabi and Pintu also started giving out threats to murder the victim for dismissing Madhabi from Sishu Shiksa Kendra when he became secretary and accused Mairaj, Swakat, Malek, Moktar, Rejaul, Pralay @ Puchke, Billal and Provat who used to stay in Pintu's house also threatened his father to commit murder. Appellant Kalu @ Dilip Roy and his brothers Sanjit and Jharu also used to threaten his father to kill him for the arrest of Kalu in the murder case of Buddo of Nowda holding him responsible for his arrest. Accordingly, on the relevant date at about 7.30 p.m. when his father left his STD booth at Akaipur for home by his motor cycle and 5/7 minutes prior thereto he saw Kalu Roy, Dilip Roy, Sanjit Roy, Jharu Roy, Kamal Hossain Molla proceeding towards his house by cycle and at about 7.45/8 p.m. when he heard from the people that his father had been murdered, then it was his firm belief that the appellants along with other accused persons have murdered his father.
Learned court below took into consideration the evidences of mainly P.W.1, P.W.3, P.W.4, P.W.5, P.W.6, P.W.7, P.W.24 besides the evidence of the doctor and the IO to arrive at the conclusion that prosecution had been successful in proving beyond doubt that the appellants along with other accused persons in furtherance of their criminal conspiracy caused the death of the victim and thereby committed an offence punishable under Section 302/120B IPC.
Admittedly, none of the witnesses examined by the prosecution are the witness to the occurrence and the entire case is based on the circumstantial evidence as also the motive. It is the settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the offence of the accused. The chain of circumstances should be of a conclusive nature and must be completed and most clearly point out to the guilt of the accused. Reference may be made to the decision of Hanumant Gobind Nargundkar and another vs. State of Madhya Pradesh, reported in A.I.R. 1952 Supreme Court 343 and Harishchandra Ladaku Thange v. State of Maharashtra, reported in (2008) 1 Supreme Court Cases (Cri) 755. This principle of law has been elaborately discussed by us in the matter of Biswajit @ Buro Roy vs. State of West Bengal reported in (2015)4 Cal LT 120(H.C.) as also in (2016)1 C Cr LR (Cal)396.
So, the circumstances the prosecution has tried to prove against the appellants are that they were seen near the site of murder by P.W.3, P.W.4, P.W.5, P.W.6, P.W.7 and P.W.24 and they harboured ill feeling and had motive behind the murder.
So, the first circumstances alleged against the appellants is that they were seen at or near the site of murder by P.W.3, P.W.4, P.W.5, P.W.6, P.W.7 and P.W.24.
According to P.W.3, on the relevant date and time, on hearing the sound of bomb explosion when he along with P.W.6, P.W.11, P.W.18, Sumanta Roy and others rushed towards that place they saw in the flash of torch light Madhabi, Pintu and Puchke who on seeing them moved away to the side and on proceeding further they saw appellants Kalu, Kamal as also accused Jharu, Sanjit, and others in the flash of torch who threatened to open fire if torch light was flashed again. But the above claim of P.W.3 did not find support either from P.W.11 or from P.W.18. Interestingly, during investigation he stated to the investigating officer that he saw many people were fleeing away by the ail of the field. Admittedly many persons arrived at the place of occurrence prior to their arrival. On earlier occasion while deposing before court in course of trial of other accused persons he admitted that victim was his cousin brother and he along with victim and other villagers looted the house of Dulal Biswas of Aitpara. So, apparently credibility of this witness was doubtful and as such can not be relied on. According to P.W.4, on hearing the sound of bomb explosion he along 3 /4 persons rushed to the place and found Madhabi Roy standing by the side of the bamboo grove near the house of Nikhil Ray and also saw in the flash of torch light appellants Kalu, Kamal as also accused Jharu, Sanjit, Pintu Roy, Billal, Puchke and others. Admittedly, he did not state to the investigating officer that in the flash of torch light they saw Kalu, Kamal, Jharu, Sanjit, Pintu Roy, Billal, Puchke and others. According to his own admission when the I.O. asked them about the incident at the P.O. they did not say anything to him. During cross-examination he stated that P.W.6, Mithu, Nirmal and many others were with him and they found Kalu, Jharu, Sanjit, Pintu, Kamal, Billal and Puchke on the southern side of the road. He admitted that victim belonged to CPM party and he was also supporter of that party. He also admitted that they did not find anyone near the dead body of Subhas Biswas. So, according to him only Madhabi was seen near the house of Nikhil and on proceeding further Kalu, Jharu, Sanjit, Pintu, Kamal, Billal and Puchke were seen at another place on the southern side of the road whereas P.W.3 had claimed that Madhabi, Pintu and Puchke were seen at one place and on proceeding further they saw Jharu, Sanjit, Kamal and others. According to P.W.5, son of the victim,on hearing the sound of bomb explosion and gun shot he along with P.W.3, P.W.4, P.W.10 and many others rushed there and in torch lights they found Pintu's wife standing at the entrance of their village who on seeing the flash of torch lights moved away to the side. They also flashed their torch lights in different directions and saw Malek, Miaraj, Sawkat and Provat, Kalu, Sanjit, Jharu and Pintu Roy, Kamal Hossain, Billal, Muktar, Puchke, Reja Bukra and Rulamin. They then tried to chase them but they threatened them to fire and proceeded towards the jute field. Interestingly, at nowhere P.W.3 or P.W.4 had stated that P.W.5 was with them and/or that they tried to chase the miscreants. According to P.W.24 on hearing the sound of bomb and gunshot he rushed to the place and while rushing to the place of occurrence he saw Madhabi Roy and Pintu Roy standing by the side of the road and when he flashed the torch light they moved away. He also saw Jharu, Kalu, Sanjit, Billal, Kamal, Puchke and many others and when they flashed their torch lights they chased them and shouted to fire at them. Interestingly, he did not state to I.O., P.W.25, that when he flashed the torch they moved away here and there and/or that when they flashed the torch light they chased them and threatened to fire. According to P.W.6, on hearing the sound of bomb he rushed there and found Madhabi Roy near the house of Nikhil Roy near bamboo groves who seeing them stepped down and stood aside. They proceeded further and flashing the torch light on the left they found Pintu Roy, Kalu, Sanjit, Jharu, Kamal, Billal, Puchke, Malek, Muktar Reja Bokra, Sawkat, Provat and others and on seeing them they stepped to the pit and left when they shouted "dhor dhor" they used filthy language and threatened to murder. Admittedly,he did not say this to the I.O. during investigation nor stated the name of Kamal to him. According to P.W.7, on hearing the sound of bomb and gunshot he rushed there along with others and saw some people were fleeing away and saw in the torch light Jharu, Kalu, Pintu and many others who entered the jute field. According to him when torch light was flashed on them they threatened to kill them if they proceed towards them. According to his own admission he did not make any statement to the investigating officer in connection with this case. Interestingly, none of the above witnesses had spelt out the role played in the crime by any of the appellants and/or their presence at the scene of the crime nor stated all these to the investigating officer during investigation. On scrutiny of the evidences of the above witnesses, we find several contradictions in their statements with regard to the exact location where the appellants were reportedly seen and the distance from the place where dead body was found. Be that as it may, it was a dark night and there was no electricity light at the place of occurrence and the villagers rushed there from all side on hearing the sound of firing and bomb explosion. Appellants were reportedly seen in the torch light near the site of murder on the relevant night by the above witnesses but not a single torch light was seized and produced in support of their above claim. The observation of the learned court below that it is but natural for the villagers having no electricity to carry torch at night while setting out from the house does not appear to be based on sound footing as presumption can not take the place of proof. Moreover, there was no evidence on record that there was no electricity in the Aitpara village. In view of the above and in the light of the evidence, their claim that the appellants were seen near the site of murder while fleeing away did not appear to be believable. In such circumstances no presumption could be drawn on the issue. That being the position, we are of the view that prosecution has failed to prove the last seen theory against the appellants.
Another circumstances which the prosecution has tried to prove against the appellants is the motive behind the murder. In this regard prosecution has relied on the evidence of P.W.1, P.W.3, P.W.5, P.W.6 and P.W.24. It was evident from the evidence of P.W.1, that he was not the witness to the occurrence and his claim of involvement of the appellants in the murder of his father was based on assumption allegedly on account of previous threat to life of his father. Accordingly, while lodging the complaint he made allegations against appellants Dilip Roy @ Kalu, Kamal Hossain and accused Sanjit Roy and Jharu Roy alleging that they used to intimidate his father to murder him and that on the relevant date 05 minutes prior to departure of his father they set out towards the village by cycle and incident took place, so it was his belief that they have murdered his father with the assistance of others. In course of his examination he tried to prove that appellant Kalu and his brothers Sanjit and Jharu threatened the victim to murder him for the arrest of Kalu in connection with Buddo's murder case as his role was suspected for his arrest. But on being challenged he could not say the date, month or year when the appellants threatened to murder his father. Admittedly victim was a political person and had both enemies and friends and he was also an accused in the Raghu's murder case and was even convicted. P.W.3 did not support the above claim of P.W.1. There was no whisper by him about any such ill feeling or threat by Kalu and his brothers over the reported arrest of Kalu in connection with murder case of Buddo of Nowda. P.W.5 while supporting the claim of his brother,P.W.1, with regard to the grudge of Kalu and his brothers over arrest of Kalu in the murder case of one Budo went one step further stating that one/two days prior to the incident there was whispering that Pintu and Madhabi gave R. 50,000/- to Malek, Miaraj, Sawkat, Muktar, Kamal, Billal, Rulamin, Reja Bokra and Puchke to murder his father but surprisingly he did not state this to the I.O. during investigation or to the police officer during the inquest held in his presence nor stated from whom he heard this. P.W.6 also did not whisper anything against the appellants with regard to their alleged threat to the victim for the reported arrest of Kalu. From the evidence of P.W.24 also it appears that he only put accusing finger against Madhabi for which he was declared hostile by the prosecution and was cross-examined by the prosecution and during cross-examination he claimed that he stated to the I.O. that in connection with murder case of Budo, Kalu was arrested for which Kalu and his brothers held the victim responsible and also claimed that he stated to the I.O. that two days prior to the murder of the victim there was a meeting in the house of Pintu where monetary transaction of Rs.50000/ took place for the murder of the victim and Pintu and Madhabi were the organizers and that Kalu called those persons and murdered the victim. But during cross-examination by the defence, he admitted that he was not present in the meeting in question nor he was present when the victim was murdered. There was whisper from whom he came to know all these. It was reveals from the evidence of I.O. that during investigation he did not state all these to him. This also did not find support from other prosecution witnesses. Admittedly no such date, month or year with regard to the reported threat of life of the victim was brought on record to show the proximity with the murder of the victim. Thus, we find that the circumstances from which the conclusion of guilt of the appellants is to be drawn have not been fully established. This being the position, we have no option but to hold that the impugned judgement cannot be sustained in law because prosecution had failed to prove this circumstances also.
Regarding FIR being ante dated, it is the settled proposition of law that it is not always a circumstance on the basis of which the prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case where the circumstance of delay may lead to serious consequences. In the instant case, the incident in question took place in the night of June 10, 2007, and the FIR was reportedly lodged on the same night, though the same was placed before the Magistrate for obtaining his signature only on June 14, 2007. From the evidence on record, it appears that prior to his receipt of the complaint at the P.S. one information with regard to hurling of bombs and firing at Aitpara was received and accordingly one GDE no.429 was recorded. From the evidence of P.W.23 and P.W.25, it reveals that on the basis of the information of the incident they proceeded to the place of occurrence. FIR (Ext.13) discloses start of one UD Case being no.11/2007 dated June 10, 2007 at the Gopal Nagar P.S. and even the inquest was held by P.W.23 in connection with that UD Case. Admittedly, time of holding inquest was not mentioned in the inquest report. P.W.25 claimed to had received the complaint on that night at the spot. P.W.2 also deposed that he scribed the complaint where the dead body was lying. But according to P.W.1, FIR was written in his house and he handed over the same to the police in his house. GDE in question was not produced during trial nor the UD case which was recorded before lodging of the complaint. Inquest report though held in presence of P.W.5 and others was completely silent with regard to the history behind the incident and the persons responsible for the same. There has been no explanation for the delay in sending the FIR to Court from the side of the prosecution. Therefore, taking into consideration of the entire facts and circumstances of the case, such delay according to us is the another circumstances which touches the credibility of the prosecution case.
The learned Trial Court did not take into consideration the above aspect of the matter also.
Another circumstances which the prosecution has tried to prove against the appellants is that they were absconding after the incident. There was no evidence on record that raid was conducted at the house of the appellants and they were not found in their house. However, it was true that only after conclusion of trial of other charge-sheet accused persons these appellants were apprehended and brought to court to face the trial. Be that as it may, mere absconding by itself does not necessarily lead to a firm conclusion of guilt of mind unless corroborated from other circumstances. It is a settled legal position that mere abscondence can not be taken as a circumstance to draw an adverse inference. Reference may be made to the decision of Sk. Yusuf vs. State of West Bengal, reported in (2011) 11 Supreme Court Cases 754 and the relevant portions of the above decision is quoted below:-
"31. Both the courts below have considered the circumstance of abscondence of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. (Vide Matru v. State of U.P., reported in (1971)2 SCC 75, Paramjeet Singh v. State of Uttarakhand, reported in (2010)10 SCC 439 and Dara Singh v. Republic of India, reported in (2011)2 SCC 490.) Thus, in view of the law referred to hereinabove, mere abscondence of the appellant cannot be taken as a circumstance which gives rise to draw an adverse inference against him."
(Emphasis supplied) Thus, we find that the circumstance from which the conclusion of guilt is to be drawn has not been fully established.
The learned Trial Court did not take into consideration the above aspect of the matter also.
Regarding non-mentioning of the name of any accused/appellant in the inquest report, we find from the record that P.W.23 made inquest over the dead body of the victim in presence of witnesses. It appears from Ext. 5, inquest report, that neither the history nor the name of the assailant was given therein. Be that as it may, the main purpose of holding inquest is to ascertain whether a person has died under the circumstances which were doubtful or an unnatural death and if so what is the cause of death. An inquest report is not a substantive piece of evidence. The non-mentioning of the names in the inquest report can at the most be said to be a lapse or incompetence on the part of the investigating officer. Mere absence of the name of the assailant in the inquest report is not fatal and no inference adverse to the prosecution could be drawn for the same. As such the decision of the learned court below on this score is not sustainable in law.
Regarding omission in the FIR as to the theft of bag of the victim containing his mobile phone, voter's I/D card, LIC Premium receipt, driving licence etc., as also about the conspiracy and threat to the life of the victim, it is the settled proposition of law that the main purpose of FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law and the same itself is not the proof of a crime but is a piece of evidence which can be used for corroborating prosecution case. FIR need not be an encyclopaedia of all facts and circumstances on which the prosecution relies. But at the same time vital omissions in the FIR can make the prosecution case doubtful. According to both P.W.1 and P.W.5 Madhabi Roy and Pintu Roy harboured ill feeling towards their deceased father for terminating the service of Madhabi from the Sishu Shiksha Kendra and over the quantum of land gifted by the father of Pintu and they used to threaten the vicim to murder him and Mairaj, Swakat, Malek, Moktar, Rejaul, Pralay @ Puchke and others who used to stay in Pintu's house had also threatened the victim for dire consequences. Admittedly, P.W.1 did not see to murder his father nor saw the miscreants at or near the place of occurrence. But P.W.5 had claimed that on the relevant night while rushing to the P.O. along with others he saw in torch lights Pintu's wife standing at the entrance of their village who moved away on the road on seeing the flash of torch lights and also saw Malek, Miaraj, Sawkat and Provat, Kalu, Sanjit, Jharu and Pintu Roy, Kamal Hossain, Billal, Muktar, Puchke, Reja Bukra and Rulamin and when they tried to chase them they threatened them to fire and proceeded towards the jute field. P.W.5 came to the P.O. prior to P.W.1 and according to him he had talk with P.W.1 on that night about the incident. P.W.1 also admitted that on that night he spoke with his brother over the incident. But inspite of that name of the accused persons/appellants whom P.W.5 saw on that night and who used to threaten their father to murder him did not figure in the FIR. The reported missing/theft of the bag of the victim containing his mobile phone, voter's I/D card, LIC Premium receipt, driving licence and other documents also did not figure in the FIR though since beginning P.W.1and P.W.5 had the knowledge of the same and it surfaced only during trial. P.W.25 also admitted that prior to the lodging of the complaint name of the assailants were not disclosed to him. It has come out during trial that Pintu attended the cremation and was invited for Sradh ceremony of the victim and he attended. If the role of Pintu in the death of the victim was doubted since the very night of the incident and he and his wife were reportedly seen on that night in suspicious condition then there was no explanation as to why he was allowed to participate in those ceremonies and why his and his wife's name and names of others who were seen on that night did not figure in the FIR. In view of the above, such omissions were of material dimension going to the root of the case and casts doubt with regard to the credibility of prosecution witnesses and the prosecution story. All these escaped the attention of the learned court below. As such the decision of the learned court below on this score is not sustainable in law.
In view of the discussions and observations made hereinabove, we hold that the prosecution has failed to establish the chain of circumstances which could link the appellants with the crime and as such the conviction of the appellants cannot be sustained.
In view of the distinguishable facts and circumstances involved in this case, as discussed hereinabove, the decision of Shyamal Ghosh (supra), Kulwinder Singh (supra) and Firozuddin Basheeruddin (supra) do not help the prosecution case.
We, accordingly set aside the conviction and sentence of the appellants and acquit them of the charges levelled against them.
Appeal is, therefore, allowed and the appellants are set at liberty from this case.
Appellants are directed to be released from custody forthwith, if not required to be detained in any other case.
Copy of this judgement along with the lower court records be sent down to the trial court expeditiously.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties expeditiously upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)