Calcutta High Court (Appellete Side)
Phani Bhusan Maity & Others vs The State Of West Bengal on 29 September, 2014
Author: Shib Sadhan Sadhu
Bench: Shib Sadhan Sadhu
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Shib Sadhan Sadhu
C.R.A. 94 of 1988
Phani Bhusan Maity & Others
...Appellants
Versus
The State of West Bengal
... Respondent
For the Appellants : Mr. S.K. Basu
Mr. Soubhik Mitter
Mr. R. Chowdhury
Mr. S.Banerjee
For the State : Mr. Rudradipto Nandi
Heard on : August 22, 2014.
Judgment on : September 29, 2014
Shib Sadhan Sadhu, J.
1. The instant Criminal Appeal is directed against the judgment and order of conviction passed by the Learned Additional Sessions Judge, 3rd Court, Midnapore in Sessions Trial No.VII of October, 1983 decided on 02.03.1988 whereby the appellants have been sentenced to suffer Rigorous Imprisonment for 2 years each for commission of offence under Section 148 of the Indian Penal Code and also to suffer Rigorous Imprisonment for 6 years each and to pay a fine of Rs.1,000/- each, in default, to suffer further Rigorous Imprisonment for 2 months each for commission of offence under Section 304 (I) of the Indian Penal Code read with Section 149 IPC. However, both the sentences wound run concurrently.
2. Sans unnecessary details the prosecution case may be reproduced in the following words:-
"That on 06.10.1981 at about 11.40 a.m. when the de-facto complainant Anil Kumar Maity returned home from Banamali Chatta Hospital, his daughter Prativa Rani Maity came running and reported that the appellants had been assaulting her uncle Kanai Maity with 'Bhali' in front of the house of Adhar Singh. Hearing that the de-facto complainant and his elder brother Paramananda Maity rushed to the place of occurrence and found blood stain on the road and the appellants Bani Maity, Ananta Jana, Prasanta Maity and Bhim Paira were wiping out the blood stain from the 'Bhalis' by their hands in front of the house of Panchanan Bera. The remaining appellants were standing on the road. They also found bleeding injury on the leg of the appellant Bibek Maity. Seeing them the appellants fled away through the Northern Side Bridge. Panchanan Bera came running to them and told that the appellants had murdered Kanai Maity, brother of the de-facto complainant, inside the house of Panchanan and fled away. Panchanan further reported that while Kanai was returning from Nimpur hat the appellants attacked him in front of the house of Adhar Singh and chased him and he rushed towards the house of Panchanan and he fell down. Then Achinta and Bani struck Kanai with 'Bhali'. Kanai somehow took shelter inside the house of Panchanan and the said Ananta Jana and Bani Maity entered inside following Kanai and assaulted him and murdered him.
3. Thereafter, the de-facto complainant went to the Contai P.S. and lodged a written complaint on the basis of which Contai P.S. Case No.11 dated 06.10.1981 under Section 302/34 IPC was registered. That case was investigated into and on completion of investigation charge sheet was submitted. Thereafter, the case was placed for trial before the Learned Additional Sessions Judge, 3rd Court, Midnapore who framed charges under Section 148 I.P.C. and u/s 302/149 I.P.C. against the present appellants and after completion of the trial he held the appellants guilty and convicted them as aforesaid.
4. In order to prove the charge the prosecution examined altogether 11 witnesses. Out of those witnesses, P.W.1 Anil Kumar Maity is the de-facto complainant and brother of the deceased Kanai Maity, P.W.2 Prativa Maity is the niece of the deceased who witnessed the first part of the incident, P.W.3 Indubala Maity is the Boudi of the deceased, P.W.4 Sandharani Maity is the widow of the deceased, P.W.5 is Panchanan Bera inside whose house the deceased was allegedly murdered, P.W.6 Paramananda Maity is the elder brother of the deceased, P.W.7 Chanchal Kumar Maity was merely tendered for cross-examination which was declined, P.W.8 is Constable Buddhiram Sharma who carried the dead body to the hospital for post mortem examination, P.W.9 is Dr. B.K.Nanda who held the post mortem examination, P.W.10 is S.I. of Police Swapan Kumar Das who registered the case on receipt of the complaint and P.W.11 is S.I. of Police Tarun Kumar Das who took up investigation, proceeded to the place of occurrence, held inquest over the dead body and sent the same for post mortem examination, prepared rough sketch map with index and seized some articles and also some blood stained earth and controlled earth from the place of occurrence under a seizure list and thereafter on completion of investigation, submitted the charge sheet.
5. I have heard Mr. Soubhik Mitter, Learned Counsel appearing on behalf of the appellants while the respondent State has been represented by the Learned Counsel Mr. Rudradipto Nandi.
6. Learned Counsel for the appellants Mr. Mitter, has taken me through the oral testimonies of the prosecution witnesses. He pointed out some variations apparent from the evidence adduced by those P.W.s. and has advanced the following arguments while impugning the judgment under appeal:
i) Although the F.I.R. was lodged on 06.10.1981 but the same was forwarded to the Learned Magistrate on 15.10.1981 and there is no explanation offered by the prosecution for such culpable lapse. Therefore, the prosecution case is cast with shadow;
ii) P.W.5 Panchanan Bera, the alleged eye witness of the incident though examined but was not produced by the prosecution for cross-examination. So his evidence cannot be considered at all and is liable to be expunged;
iii) The place of occurrence is not pinpointed by the Investigating Officer. The seizure lists are vague. The rough sketch map also does not fix the place of occurrence clearly.
Therefore, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt;
iv) The post mortem report was not produced or exhibited.
Thus the cause of death is not established;
v) The only alleged eye witness is P.W.2 Prativa Maity who was aged about 10/11 years at the relevant time and she has failed to render cogent, reliable and truthful account and her version is not corroborated by other evidence on record. Thus no reliance can be placed upon such version of P.W.2 and it cannot be made the basis of conviction ;
vi) The examination of the accused u/s 313 Cr.P.C. was not proper in as much as the circumstances, which have been used against them, were not put to them during such examination. Therefore, the conviction is also vitiated on that count.
7. Summing up the aforesaid contentions, the Learned Counsel concluded that there is no clear, cogent or clinching evidence to sustain the conviction and urged that the appeal deserves to be allowed by setting aside the impugned judgment and order passed by the Learned Trial Court. He relied on the decisions reported in 2011(6) Supreme 349 (Shivlal & another v. State of Chattishgarh); (2014) 5 SCC 389 (Radhey Shyam v. State of Rajasthan); (2014) 1 SCC (Cri) 677 (Sujit Biswas v. State of Assam) in support of his contentions.
8. As against this, Learned State Counsel, Mr. Nandi has opposed the present appeal and has submitted that taking into consideration the totality of the evidence of record, the prosecution has been able to prove the guilt to its hilt and has successfully established the charges levelled against the appellants. He has further pointed out that the oral testimony of P.W.2 cannot be discarded simply on the ground that she was aged about 10/11 years at the time of incident specially when she witnessed the attack and assault upon her uncle by the appellants and also when the account rendered by her is otherwise trustworthy and inspires confidence. According to him the impugned judgment is well contained and well reasoned and thus deserves no interference. He, thus, insisted upon dismissal of the appeal.
9. I have perused the record and proceedings in the context of rival submissions and in the light of the decisions placed. I have also meticulously scrutinized the oral testimonies of the P.W.s.
10. Now coming to the prosecution case I find that P.W.2 Prativa Maity and P.W.5 Panchanan Bera are the eye witnesses to the incident. While P.W.2 witnessed the first part of the incident, P.W.5 witnessed the final / last part of the incident. P.W.5 although was examined in chief but was not produced by the prosecution for cross-examination. From the record it appears that the prosecution failed to produce P.W.5 for cross-examination. As such it cannot be said that defence had adequate opportunity of cross-examining P.W.5 but they did not avail of it. Therefore, the evidence adduced by P.W.5 in chief is liable to be struck out. The Learned Trial Court also did not take into consideration such evidence at all.
11. P.W.2 deposed that P.W.1 is her father, Kanai Maity since deceased was her paternal uncle. On 19th Aswin, 1388 B.S. at about 10/11 a.m. Kanai was killed. While she was returning to their house from Nimpur hat she saw all the accused persons and others assaulting Kanai Maity on the road in front of the house of Adhar Singh. The miscreants were using lathis, Bhalis and iron rods. She further stated that Adhar Jana, Atul Singh and Badal Mondal were the other miscreants besides the accused persons. She hurriedly returned to their house and narrated the incident to her father and other inmates. On hearing that, her father, her uncle Paramananda and her aunts rushed towards the P.O. She also accompanied them. On reaching the P.O. they found trace of fresh blood from the front of the house of Adhar leading towards the house of Bhupen Bera. They also saw the bag of vegetables stained with blood lying there, some vegetables and chira lying scattered. She saw Ananta Jana, Bani Maity, Bhim Poira and Bibek Maity with blood stained Bhalis in their hands. They were trying to rub out the bloodstains. The other persons were standing with lathis and iron rods. They were all near the house of Bhupen Bera. Panchanan came out of the house of Suresh Bhar and stated that all the accused persons and others assaulted and killed Kanai. On seeing her father and others coming, the accused persons left the place. They later entered into the house of Bhupen and found Kanai was lying dead on a pool of blood. He had several bleeding injuries on several parts of his body and intestine came out. They started crying. Her father left the place for going to Thana. She was examined by the I.O.
12. In cross-examination P.W.1 could not say the names of the persons from whom she made purchase in the Hat that day. She got frightened on seeing the incident and raised alarm but none arrived there. Beside the inmates of her house she did not tell anything to the inmates of any other house intervening their house and the P.O. The neighbours arrived in their house and she told them about the incident. The weeping continued for more than one hour. The neighbours did not accompany them to the spot. Sometimes after their arrival at the P.O. some other villagers numbering 50/500 reached there. They narrated the incident to them. They did not arrive so long her father and paternal uncle were at the P.O. The villagers also heard the incident from Panchanan. She further stated that she saw the incident of assault just for a while. She denied the suggestion that she did not tell the I.O. that some of the accused persons had lathis and iron rods in their hands while assaulting Kanai or that she saw Bibek standing with blood stained Bhali in his hand and he was cleaning the blood stains or that some of the accused persons were standing near the house of Bhupen with lathis and iron rods in their hands. She further stated that she did not see Badal Jana amongst the miscreants and she did not name Badal Jana to the I.O. She further denied that she did not name Badal Jana, Phani Maity and Achinta to the I.O.
But I find that P.W.11 S.I. Tarun Kumar Das (I.O.) after being confronted with the statement of P.W.2 disclosed that the said witness P.W.2 did not state to him that while Kanai was being assaulted some of the accused persons were having lathis and iron rods in their hands and that after the incident she saw Bibek standing with a blood stained 'Bhali' and cleaning the same and that some of the accused persons were standing near the house of Bhupen with lathis and iron rods. He further made it clear that she did not mention the name of Phani Maity as one of the miscreants but she however named Badal and Achinta before him.
13. Thus it is seen that P.W.2 who was aged about 10/11 years and is the sole eye witness to the first part of the incident has made some material omissions and contradictions. She did not state to the I.O. that while the victim was being assaulted, some of the accused persons were armed with lathis and iron rods. In the F.I.R. which was authored and lodged by P.W.1 after hearing the incident from P.W.2 it is mentioned that all the accused persons were assaulting the victim Kanai Maity with 'Bhali'. Further she did not disclose before the I.O. that after the incident she saw the appellant Bibek Maity standing with a blood stained 'Bhali' and that he was cleaning the same. Similarly she also did not disclose before the I.O. that some of the accused persons were standing near the house of Bhupen with lathis and iron rods. She also did not mention the name of Phani Maity as one of the miscreants before the I.O. Moreover, although she claimed not to have mentioned the name of Badal Jana before the I.O. but the I.O. discredited her on this score. Yet further she named three more miscreants Adhar Jana, Atul Singh and Badal Mondal whom she also saw to take part in the assault upon the victim but curiously enough in the F.I.R. (Ext.1) the names of Adhar Jana and Badal Mondal are not mentioned. Also no reference of such miscreants is found in the evidence of other witnesses nor they were charge-sheeted. It is interesting to see that P.W.2 did not assign any specific role or part played by any of the appellants or the other miscreants. She also did not narrate whom of the accused was armed with which weapon. It remains a wonder that she being a young girl of 10/11 years witnessed the incident for just a while and still she could retain it in her memory alive for more than 7 years and could name as many as 19 assailants. Be that as it may, the law is well settled on the point that evidence of a child witness can be relied upon if the same is truthful and corroborated by other evidence on record. In the case of Radhey Shyam Vs. State of Rajasthan reported in (2014) 5 SCC 389 (Supra), the Hon'ble Supreme Court held that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others told him and thus a child witness is a easy prey to tutoring. It was further observed by the Hon'ble Supreme Court that the evidence of a child witness must find adequate corroboration before it is relied upon and it must be subjected to close scrutiny to rule out the possibility of tutoring and if found reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation.
14. So let me now proceed to examine the other evidence and materials on record in order to see how far P.W.2's evidence is reliable and can be acted upon.
15. Looking into the evidence of P.W.1, P.W.3, P.W.4 and P.W.6 who are all close relations of the deceased, I find that they have all claimed to have heard about the incident from P.W.2 and rushed to the P.O. But in the F.I.R.(Ext.1) it is mentioned that when P.W.1 returned home from hospital, P.W.2 came running and narrated the incident to him and there is no mention that all other inmates were present at that time. Further they have stated that after hearing the incident they rushed to the P.O. but in the F.I.R.(Ext.1) it is stated that P.W.1 and P.W.6 only rushed to the P.O. Another vital contradiction which easily attracts the attention is that although those witnesses have claimed to have seen stains of blood starting from the P.O. in front of the house of Adhar Singh to the house of Panchanan but this fact conspicuously does not find place in the F.I.R. P.W.1 made improvement from his F.I.R. version by claiming that he stated to the I.O. that he heard from Panchanan that while Kanai was asking for mercy, Hemanta asked to finish him and Bani and Ananta gave final blows but the I.O. P.W.11 totally discredited him by disclosing that P.W.1 did not state so in his subsequent statement under Section 161 Cr.P.C. recorded by him. P.W.3 did not state before the I.O. that P.W.2 was returning from Hat or that P.W.2 stated about lathis, iron rods and that she marked trails of blood leading from the road in front of the house of Adhar to Panchanan's house. She also did not mention the names of all the appellants as the miscreants before the I.O.
P.W.4 deposed that on reaching to the P.O. Panchanan told that the accused persons killed her husband and were running towards east after crossing the wooden bridge. The I.O. P.W.11 disclosed that she did not name Phanibhusan Maity as one of the miscreants and that P.W.2 was returning from the Hat or that when she reached there the accused persons were fleeing away after crossing the wooden bridge. P.W.6 deposed that on hearing incident, he rushed towards the P.O. followed by P.W.1, P.W.2, P.W.3 and P.W.4. He found Ananta Jana, Bibek Maity, Bani Maity, Prasanta Jana and Bhim Paira cleaning their blood stained 'Bhali' near the house of Panchanan and the other accused persons stood at some distance and seeing them the accused persons left the place after crossing the wooden bridge. But the I.O. P.W.11 contradicted him by stating that P.W.6 stated before him that he saw some of the accused persons cleaning their 'Bhalis" but did not name Bani or Bibek to be amongst them. P.W.11 further disclosed that P.W.6 did not state to him that while Panchanan named the assailants of Kanai inside his house, he also named Bibek and Prasanta as the assailants.
It is clearly mentioned in the F.I.R. (Ext.1) that Panchanan Bera came running to them and stated that the accused persons had murdered Kanai Maity inside his (Panchanan's) house and fled away. Thus it remains a mystery how these witnesses could see the accused persons standing at or near the scene of occurrence at all.
16. P.W.2 stated that her father left the place for going to Thana.
P.W.1 however stated that he went to the P.S. on call. From the F.I.R. (Exts.1 and 3) it appears that the written complaint was lodged at 14.08 hours on 06.10.1981 while the date and hour of occurrence is recorded therein as on 06.10.1981 at 11.40 hours but there is no explanation put forward for such delay of more than 2 hours when the P.S. is about 12 kilometers distant from the village of the informant. It further appears that there was eight (8) days delay in sending the F.I.R. to the concerned Magistrate and there is equally no explanation assigned by the prosecution for such inordinate delay in receipt of the F.I.R. by the Magistrate concerned. Therefore, there is every reason to suspect that the F.I.R. was cooked up subsequently and the time mentioned therein was not the actual time of recording. In this context, I think it appropriate to quote the observation made by the Hon'ble Supreme Court in the case of Meharaj Singh (L/NK.) V. State of U.P. reported in (1994) 5 Supreme Court Cases 188 which is as follows:
"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR,called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. 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 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 (Para 12)."
17. All these P.W.s. namely P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 stated that they entered inside the house of Panchanan Bera and found the dead body of Kanai was lying on a pool of blood. P.W.1 more specifically stated that the dead body was lying inside the western room of the house. P.W.11 i.e. the I.O. deposed that he was taken to the house of Panchanan Bera by P.W.1 and there he found the dead body of the deceased was lying on the floor of that house on a pool of blood and that he held inquest over the dead body. But the rough sketch map (Ext.4) prepared by P.W.11 shows that the dead body was lying on the entrance of the house of Panchanan Bera. Be that as it may, P.W.11 admitted that he did not seize any blood or controlled earth from the place where the dead body was found on pool of blood. He further admitted that in the seizure list (Ext.2), column of place and from whom seized had been left blank by him. But curiously enough P.W.6 stated that Daragababu seized blood stained earth etc. from inside the house of Panchanan. The non-seizure of the blood stained earth from the alleged place of occurrence by the I.O. and want of evidence showing blood trail from the road in front of the house of accused Adhar Singh to the place where the dead body was found suggests that the occurrence did not take place in the manner suggested by the prosecution and that the actual occurrence has been suppressed from the Court. Withholding of the inquest report without any plausible explanation further casts a doubt on the correctness of the prosecution version.
18. Another fact is required to be addressed to. It is interesting to see that all the incriminating materials which have been used against the accused persons have not been put to them in their examination u/s 313 Cr.P.C. and such examination has been made in a cryptic manner. It appears that all the accused persons were asked to give explanation by putting that P.W.1 had seen all of them to assault the deceased Kanai Maity. But in fact P.W.1 is not at all an eye witness and he heard about the incident from P.W.2 and P.W.5 whose evidence was expunged. Therefore, this amounts to a serious irregularity vitiating the trial as the accused were prejudiced. It is well-settled position of law that Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. This provision is mandatory in nature and casts an imperative duty on the Court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination u/s 313 Cr.P.C. cannot be used against him and have to be excluded from consideration (vide Sharad Birdhichand Sarda V. State of Maharasta, AIR 1984 SC 1622). Therefore, it becomes apparent that the examination u/s 313 Cr.P.C. in the instant case is vitiated with improper examination and inadequate questioning which amounts to a serious lapse on the part of the Trial Court and is a ground for interference with the conviction.
19. The alleged eye witness P.W.2 and the other witnesses namely P.W.1, P.W.3, P.W.4, P.W.6 are undoubtedly deeply interested in the prosecution. On careful scrutiny of their evidence as discussed in the foregoing paragraphs, it appears to me that none of those witnesses had actually seen the occurrence and they posed themselves as eye witnesses after thoughtful deliberations and consultations. The threadbare analysis of the evidence on record coupled with the infirmities as pointed above, I have no hesitation to conclude that the prosecution has not been able to bring home the guilt of the appellants beyond a reasonable doubt.
20. I am, therefore, unable to concur with the judgment of conviction passed by the Learned Trial Court on the strength of fabricated story, interested witnesses and on tainted investigation. As such, I allow this appeal and set aside the conviction and sentence of the appellants and acquit them of all the charges. They shall be discharged from their bail bonds and be set at liberty forthwith.
21. Let the Lower Court Records be sent down to the Court below at once along with a copy of this judgment.
22. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.
(Shib Sadhan Sadhu, J.)