Calcutta High Court (Appellete Side)
Palash Kanti Mondal @ Palash Mondal vs The State Of West Bengal on 22 April, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Manojit Mandal
C.R.A. 556 of 2015
Palash Kanti Mondal @ Palash Mondal
-vs-
The State of West Bengal
With
C.R.A. 593 of 2015
Md. Mannan Ali Molla @ Mannan Ali Mollah
-vs-
The State of West Bengal
With
C.R.A. 625 of 2015
Bapi Das @ Farsa Das b@ Jatin Das
-vs-
The State of West Bengal
For the Appellant : Mr. Ashis Sanyal,
Mr. Kishore Mukherjee
...in CRA 556 of 2015.
For the Appellant : Mr. Debashis Roy,
Mr. Pinaki Bhattacharyya,
Mr. Amit Pan
...in CRA 593 of 2015.
For the Appellant : Mr. Tanmay Kumar Ghosh
Mr. Kishore Mukherjee
...in CRA 625 of 2015.
For the State : Mr. Neguive Ahmed,
Mr. Partha Pratim Das
Heard on : 22.04.2019
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Judgment on : 22.04.2019
Joymalya Bagchi, J.:
The appeals are directed against the judgment and order dated 27.07.2015, 28.07.2015 & 29.07.2015 passed by the learned Additional Sessions Judge, 18th Court, Alipore in Sessions Case No.28(05)/2009 and Sessions Trial No.06(2)/2010 convicting the appellants for commission of offence punishable under Sections 302/149 of the Indian Penal Code and sentencing them to suffer R.I. for ten years each and to pay a fine of Rs.25,000/-each in default to suffer R.I. for six months more for the offence punishable under Section 304(i)/34 of IPC.
Prosecution case, as alleged against the appellants, is to the effect that between 22/23/01/2000 around 3 A.M. Gautam Panja (P.W.1) brother of the deceased Gourav Panja received information that his brother was lying near the house of Paritosh Mondal beside Diamond Harbour Road. He along with his father (P.W. 2) rushed to the spot and found his elder brother, Gourav sitting naked and blood was oozing out from his scrotum. They shifted the injured to Aamtala Rural Hospital, who was thereafter referred to M.R. Bangur Hospital and finally admitted at National Medical College and Hospital for better treatment. In spite of best efforts, on 28.01.2000 the victim died in the hospital. It is further alleged that the victim disclosed that on 22.01.200 at 12 midnight the appellants had accosted him at Diamond Harbour Road and assaulted him resulting in bleeding injuries. As a result, he expired. In the course of investigation, the appellants were arrested and charge sheet was filed against them.
Charges were framed under Sections 302/149 of IPC against the appellants and one Rakesh Shaw. They pleaded not guilty and claimed to be tried.
In the course of trial, Rakesh Shaw expired.
3Prosecution examined five witnesses to establish its case and exhibited a number of documents.
The defence of the appellants was one of innocence and false implication. In conclusion of trial, the trial court by the impugned judgement and order dated 27.07.2015, 28.07.2015 & 29.07.2015 convicted and sentenced the appellants, as aforesaid.
Mr. Sanyal, Mr. Roy and Mr. Ghosh, learned counsels appearing for the appellants argued there is no direct evidence connecting the appellants with the murder of the victim. Prosecution case is based on surmises and conjectures. Oral dying declaration of the victim made to the witness is most unlikely as the names of the assailants were not recorded at the time of admission to the hospital. Nor was it disclosed to the police who took the victim to the hospital or the medical personnel who treated the said victim. Only after the death of the victim, the so-called dying declaration surfaced at the time of registration of F.I.R. Conduct of the prosecution witnesses in not taking steps on the dying statement of the victim at the earliest is most unnatural and hence the dying declaration ought not to be believed. Police officer who saw the victim on the road and took him to the hospital along with P.Ws.1 & 2 has not been examined. Manner and course in which the appellants was assaulted also has not transpired from the deposition of prosecution witnesses and motive for commission of crime is unclear. Hence, the appellants are liable to be acquitted.
On the other hand Mr. Ahmed with Mr. Das, learned counsels appearing for the State argued that evidence of P.Ws.1 to 5 show that the victim had at the earliest opportunity made oral dying declaration disclosing the roles of the 4 appellants in the incident to them and there is no reason to disbelieve the evidence of the closed relatives of the victim. Explanation has been given for delay in lodging the F.I.R. Non-examination of the police officer who took the victim to the hospital does not affect the unfolding of the prosecution case and the case ought not to be disbelieved on such score. As the oral dying declaration of the victim clearly implicates the appellants, absence of motive is no ground to disbelieve the prosecution case. Hence, the appeal is liable to be dismissed.
From the evidence on record and the submissions made on behalf of the parties, it appears that the prosecution hinges on the oral dying declaration made by the victim to his relations, namely P.Ws 1 to 5 hence while he was taken to the hospital and in the hospital itself.
P.W.1, Gautam Panja is the brother of the victim and the defacto complainant. He deposed on 22/23/01/2000 he came to know about the fateful incident. He rushed to the spot and found his brother lying naked on the road in injured condition. His father Gopal Chandra Panja, (P.W.2) also accompanied him to the spot. They initially shifted the injured to Aamtal Rural Hospital and thereafter to M.R. Bangur Hospital for better treatment. Lastly, on 23.01.2000 his brother was admitted at National Medical College and Hospital, Calcutta. He deposed that his brother disclosed the names of his assailants while on his way to hospital as well as in the hospital. His brother told him that the appellants along with Animesh Das and Rakesh Shaw (both deceased) had assaulted him. He lodged written complainant.
In cross-examination, he admitted that police vehicle took his brother to hospital for treatment. He also deposed that as he was busy in the treatment of his brother, hence there was delay in lodging F.I.R.
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P.W.2, Gopal Chandra Panja, father of the victim, accompanied P.W.1 to the spot. He did not corroborate P.W. 1 that his son made dying declaration on his way to hospital. He deposed after admission to National Medical College and Hospital, on 23.1.2000 his son was feeling well and disclosed to him that the appellants, Rakesh Shaw and others had assaulted him.
In cross-examination, he admitted that he had not told the police that he had a talk with his son on 23.01.2000.
P.W.3 Sabitri Panja and P.W.4, Pritilata Panja are the mother and wife respectively of the deceased. Both of them deposed they had a talk with the victim at Chittaranjan National Medical College and Hospital who disclosed the names of the appellants as his assailants. In cross-examination, the said witnesses, however, admitted that they had not stated to police about the nature of conversation they had with the victim or the date on which they had conversed with him.
Medical documents including the bed head ticket of the victim at Chittyaranjan National Medical College and Hospital was exhibited (Ext.4). I have gone through the said documents. Nowhere in the said documents do the names of the appellants appear as assailants of the victim. That apart, none of the medical personnel treating the victim has been examined in the instant case.
It has been argued on behalf of the State evidence on record probabilises that the victim was conscious when he was recovered in injured condition from the road in night between 22-23/01/2000 and also in the hospital. Hence, oral dying declaration made by the victim to prosecution witnesses ought not to be ignored.
I am unable to accept such contention for the following reasons:-
P.W. 1 deposed victim made dying declaration to him on the way to the hospital. His version is not supported by P.W. 2, his father, who was present at 6 the spot. Prosecution case is a divided house on this score. Hence, I consider it unsafe to rely on the uncorroborated deposition of PW1 with regard to the disclosure of names of the appellant as assailants by the injured to him on the way to hospital when such fact is not corroborated by his own father (PW 2) who also accompanied them to the hospital.
On the other hand, P.W. 2 claimed that his son disclosed the names of his assailants in the hospital after admission to the hospital on 23rd January, 2000. Apart from the fact that the said witnesses admitted in cross-examination that he had not disclosed to the police that he had a conversation with his son on 23rd January, 2000, I find it difficult to rely on his version, as he remained silent with regard to such fact and did not disclose the so-called dying declaration at the earliest either to the police or to the medical personnel who were attending the victim. Such conduct of P.W. 1 is most unnatural and opposed to normal human conduct. No father would remain mute for five long days and fail to inform either the police or the medical personnel about the identity of the assailants of his son. On the other hand, he would promptly requisition their assistance to record the statement of his son and set the law into motion. P.W. 2 failed to take any step in that regard and only after the death of the victim, the so-called dying declaration surfaced in the F.I.R lodged by P.W. 2.
PW1 contended he was busy with the treatment of his elder brother and, therefore, was unable to lodge F.I.R. Ordinarily, such explanation would have been convincing, but in the facts of the present case where the prosecution witnesses particularly PW1 and PW2 claimed that on the date of admission the victim had disclosed the names of his assailants, it is difficult to accept that the said witnesses who are close relations of the victim kept mum and did not disclose this fact to the police or even to the attending doctors.7
It may not be out of place to note that police had already come into the scene at the first instance and it was with the assistance of Police (not examined in this case) the victim was removed to hospital.
Evidence of PW3 and PW4 with regard to the oral dying declaration of the victim in hospital is bereft of material particulars as to date and time. Evidence of both the witnesses are woefully vague with regard to the date and time when they went to the hospital and had conversation with the victim. They admitted in cross- examination that they had not disclosed to police the date and time as well as the nature of conversation they had with the deceased prior to his death. Hence, their evidence is not only vague but a product of concoction and afterthought and is hardly worthy of any respect.
In the light of the aforesaid evidence on record particularly the belated disclosure of so-called dying declaration by PW1 and PW2 in the F.I.R. and the vague and embellished nature of corroborative evidence from PW3 and PW4, I consider it unsafe to come to a finding that the victim had disclosed the names of the appellants as his assailants to the said witnesses on his way to hospital or after admission on 23.1.2000, as alleged. Had he done so? It would have been most unlikely that the said witnesses, who were close relations to the victim, would have immediately informed the matter to police and the treating doctors in the hospital. They failed to do so, giving rise to a brooding suspicion of embellishment regarding the implication of the appellants through the subterfuge of an oral dying declaration.
I am further fortified to come to this conclusion due to non-examination of the Police Officer who first came to the spot, detected the victim and informed his family members, i.e. P.W.s 1 and 2. Thereafter, police accompanied the victim along with his family members to Amtala hospital. Non-examination of the said 8 Police personnel, in my opinion, amounts to withholding the best evidence with regard to the circumstances in which the victim was initially found and the nature of disclosure made by the victim to the said police officer in the first instance. Withholding of such vital evidence erodes the foundation of the prosecution case which is left to sustain itself on the shaky evidence of P.W.s 1 to 4 which are fraught with improbabilities and embellishments.
In this background, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. Appellants are entitled to benefit of doubt and an order of acquittal.
Conviction and sentence of the appellants are, accordingly, set aside. Appellants shall be released forthwith from custody upon execution of a bond to the satisfaction of the trial court which shall continue for six months in terms of Section 437A of the Code of Criminal Procedure, if not wanted in any other cases.
The appeals are, thus, allowed.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.) Rkd&PA