Calcutta High Court (Appellete Side)
Bimal Kr. Mondal vs The State Of West Bengal on 5 May, 2015
Author: Patherya
Bench: Patherya
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Patherya
And
The Hon'ble Justice Indrajit Chatterjee
C. R. A. No.340 of 1997
Bimal Kr. Mondal
Vs.
The State of West Bengal
For the Appellant : Mr. Ayan Bhattacharyya
For the State : Mr. Ranabir Roychowdhury
Heard on : 5th May, 2015.
Judgment on : 5th May, 2015.
Patherya, J:
This appeal is directed against the order and judgment dated 29th
September, 1997 passed by the Assistant Sessions Judge, 1st Court Contai
convicting the accused appellant herein under section 307 of the Indian Penal
Code to suffer rigorous imprisonment for eight years and to pay fine of
Rs.3,000/-. In default, to suffer S. I. for a further period of two months.
The facts of the instant case is as follows:
The accused appellant along with eight other accused persons armed with
deadly weapons trespassed into the dwelling house of the defacto-complainant
and demolished the boundary wall of the said dwelling house. On being resisted
by P.W.6, the accused appellant inflicted a knife injury on the left chest of the
defacto-complainant's husband, Dhiren Mondal (P.W.6). The accused persons
also took away a trunk from their house containing cash and gold earring. An
FIR was filed by the defacto-complainant on 31st August, 1994, being Egra P. S.
Case No.86/94 and on basis of such complaint, investigation was initiated. As a
result of such investigation, the accused person along with eight other persons
were arrested on 17th Novermber, 1995. The investigation resulted in framing of
charges which when read out and explained to the accused appellant and the
other accused persons the said persons pleaded not guilty and sought for trial.
Trial was initiated and witnesses examined. Documents were also exhibited and
on appreciation of evidence, both oral and written, the trial court convicted the
accused appellant to suffer rigorous imprisonment for eight years and to pay fine
of Rs.3,000/-, in default, to suffer S. I. for a further period of two months. The
sentences were to run concurrently. It is from this order and judgment dated
29th September, 1997 that this appeal has been filed.
Prior to passing of the judgment but after completion of evidence, the
charge was altered by order dated 23rd September, 1997 and the initial charges
framed was altered to a charge framed under section 307 IPC. Based on the said
altered charge, the judgment and order of conviction passed has been challenged
in this appeal.
Counsel for the appellant submits that on 15th November, 1996 charge was
framed and amongst many charges framed one of them was under section
307/149 IPC. On completion of oral evidence and exhibit of documents the
charge was altered by order dated 23rd September, 1997. The charge altered is
an eye-wash as the same charge of section 307/149 IPC was maintained. This
will be evident from the purportedly altered charge. On a reading of the said
altered charge, the ingredients of section 149 IPC viz. unlawful assembly, and
common object is evident. Mere n0n-mention of section 149 IPC will not
tantamount to dropping of such charge. As the essentials of section 149 IPC is
found in the altered charge so also mention of section 307 IPC the charge, in fact,
remained unaltered. Section 211 Cr.P.C. deals with contents of charge and sub-
section 4 of section 211 specifically provides that the law and section of the law
against which the evidence is said to have been committed be mentioned in the
charge. By non-mention of section 149 IPC, the altered charge is defective. This
defective charge has prejudiced the accused and, therefore, the order of
conviction be set aside.
Besides, the charge being defective the questions put to the accused under
section 313 Cr. P. C. is also defective. More so, in the light of the decisions
reported in 1984 (4) SCC 116 and 2009 (6) SCC 595. In both the decisions the
manner in which the questions are to be put can be found. The questions put to
the accused appellant in the instant case under section 313 cannot be
deciphered, are jumbled and long and, therefore, it was difficult for the accused
appellant to understand the questions or give answer thereto. This has rendered
the questions put under section 313 Cr.P.C. defective. The evidence of each
witness was not put separately to the accused appellant to elucidate an answer
from him. The purpose of examination of an accused under section 313 Cr.P.C.
is to give him an opportunity to explain the incriminating material which has
come on record and in the absence of questions put under section 313 Cr.P.C. to
the accused appellant such opportunity was lost to him. Therefore, the defective
examination under section 313 Cr.P.C. will also render the order of conviction
bad.
Numerous contradictions have surfaced between the oral evidence of P. Ws.
2, 3, 5 and 6 and 9 (I.O.). P.W.1 who is the defacto-complainant was not
examined by the I. O. and for the first time has deposed in Court. Therefore, her
evidence ought not to be considered. Similarly, the evidence of P. W. 2 and P.
W.9 contradicts each other in so far as assault of bleeding injury with Bhojali is
concerned. The evidence of P. W.3 is also contradicted by the evidence of P. W. 9
(I.O.) in so far as it relates to infliction of bhojali blow on the left lower side of
Dhiren. The evidence of P.W.5 and P. W.9 (I. O.) is also contradictory to each
other with regard to penetration of bhojali into the lower left chest of P.W.6,
Dhiren Mondal. The evidence of P. W.6, the injured witness is also in
contradiction with that of P. W.9 (I. O.) in so far as it states that no statement
was made by P. W.6 to the I. O. The evidence of the defacto complainant and
P.W.6, injured witness is also contradictory to each other. Therefore, in view of
such contradictions the accused appellant be given benefit thereof and order of
conviction be set aside.
The evidence of P. Ws. 2, 3, 5 and 6 is valueless as no statements were
made by them to P.W.9 (I. O.). As the charge was altered on 23rd September,
1997 and the examination under section 313 Cr.P.C. is defective and evidence
full of contradiction, the order of conviction be set aside.
Counsel for the State respondent submits that there is no doubt that the
charge was altered prior to delivery of judgment but pursuant to passing of the order dated 23rd September, 1997, the said is permitted under sections 211, 215 and 464 Cr. P. C. While section 211 Cr.P.C. deals with the form of charges, section 215 Cr.P.C. deals with effect of errors. Any error or omission to state the offence is not to be regarded as material unless the accused was misled which resulted in failure of justice. Such is not the case here. In fact, section 464 Cr.P.C. has categorically stated that no finding or sentence shall be deemed invalid merely on the ground of any omission or error in the charge, unless failure of justice has occasioned. There has been no failure of justice occasioned in the instant case and while recording the order dated 23rd September, 1997, it was categorically stated that no further evidence was required to which there was no objection raised by the accused appellant. In fact, the altered charge was read over and explained to the accused appellant to which he pleaded not guilty. P.W.6 is the injured witness and non-recording of statement under section 161 Cr.P.C. will not be fatal to the case. For the said proposition reliance is placed on 2003 SCC (Cri) 165. The injured witness being P.W.6 categorically stated in his evidence that the accused appellant gave a bhojali blow on his left lower chest forcibly. Such evidence cannot be ignored. The contradictions which have been highlighted by counsel for the appellant are trivial in nature and in view of 2000 SCC (Cri) 222 be obliterated from the otherwise acceptable evidence. For the proposition that a defective examination under section 313 Cr.P.C. will not result in an order of conviction being set aside, reliance is placed on 2014(10) JT 584 and 2015 (1) SCC 496. The defective examination has neither caused prejudice to the accused or resulted in miscarriage of justice. Prejudice, if any, has neither been highlighted nor miscarriage of justice proved as it is for the accused/appellant to establish prejudice caused to him and the onus is upon him to prove the prejudice caused. As neither prejudice caused nor miscarriage of justice proved, the order of conviction be upheld and appeal be dismissed. P. W.8 (doctor) has corroborated the evidence of P.W.1 and P.W.6. This is another factor to uphold the order of conviction.
Having considered the submissions of the parties and on perusal of the evidence of the witnesses so also the altered charge and the order dated 23rd September, 1997 what emerges is that on 31st August, 1994 the accused appellant along with eight other accused persons trespassed with deadly weapons into the dwelling house of the defacto-complainant and demolished the boundary wall of the said dwelling house. When the husband (P.W.6) of the defacto-complainant, P.W.1 sought to resist such demolition P. W.6 was assaulted by the accused appellant with a bhojali blow on the left lower chest causing bleeding injury. An FIR was lodged by the defacto-complainant and on the basis of such FIR investigation initiated. The investigation resulted in framing of charges under sections 147, 148, 307/149, 302, 326 and 380 IPC. The charges were read out and explained to the accused appellant and eight other accused persons. All of the accused persons including the appellant pleaded not guilty. It is only thereafter that trial was initiated and oral evidence adduced, documents were also exhibited. Nine witnesses were called in all by the prosecution. P.W.1 is the defacto-complainant, P.W.2 is the neighbour who is the eye-witness. P. W. 3 is also a neighbour and is an eye-witness. P.W.4 and P.W.7 are tender witness, P.W.5 is a chance witness, P.W.6 is the injured witness. P.W.8 is the medical officer and P.W.9 is the I.O. Out of the said 9 witnesses much has been made of non-recording of statement of P.W.1 by the I.O. under section 161 Cr.P.C., but such non-recording is of no relevance. P.W.1, the defacto-complainant filed the complaint on the basis whereof the investigation was initiated, her statement will find place in the FIR itself. P.W.2 and P.W.3 are the eye-witnesses and even if their evidences are not considered that of P.W.6, injured witness cannot be ignored who has categorically stated that the accused appellant gave a bhojali blow on his left lower chest forcibly, as a result of which profuse bleeding came out from the injured place. This is corroborated by the evidence of P.W.1 and P.W.8 (doctor). Therefore, the evidence of either P.W.1, P.W.8 and the injured witness P.W.6 cannot be ignored.
The case of defective charge can also not be supported as it was only on completion of evidence and prior to delivery of judgment on 23rd September, 1997 that an order was passed regarding alteration of charge. In the said order it has been categorically mentioned that the charges are altered in separate sheets and as no new charge has been added, no fresh evidence required. It was also recorded that no prejudice would be caused to the accused persons. It is only thereafter that the charge was framed as altered and such charge was also read over and explained to the accused to which he pleaded not guilty and claimed to be tried. The altered charge to our advantage is before us and from a reading thereof it is evidently clear that the charge has been altered from 307/149 to 307 IPC. Much has been sought to be made by counsel for the accused appellant with regard to the language of the altered charge. It is true that the charge could have been better worded but that will not render it defective as it must be borne in mind that different people perceive things differently so also in the case of writing. Although there may have been a narration of section 149 IPC, Ultimately, the altered charge framed and mentioned is section 307 IPC which is what should be looked into. Section 211 Cr.P.C. deals with content of charges and section 211(4) categorically states that the law and section of the law must be mentioned in the charge. There has been compliance of section 211(4) Cr.P.C. Mere recital of section 149 will not amount to inclusion of the said charge when there is no mention with regard thereto. Therefore, the charge mentioned is clear and the conviction thereunder calls for no interference more so in the light of section 215 and 464 Cr.P.C. Neither has the accused appellant been misled nor has there been failure of justice.
The contradictions highlighted by counsel for the accused appellant are so trivial in nature that it will not shake the evidence of the eye-witness, the defacto- complainant (P.W.1) or P.W.8 (doctor) or the injured witness himself, being P.W.6. In fact, the altered charge was also read over and explained to the accused appellant who pleaded not guilty and sought trial. In view of the decisions reported in 2003 SCC (Cri) 165 and 2000 SCC (Cri) 222, the contradictions are of no consequence nor are they so fatal to the prosecution case to call for interference with the order under appeal. P.W.6 is the injured witness and his evidence cannot be brushed aside. Non-recording of his statement will also not be fatal to the case.
In fact, the plea of defective examination under section 313 Cr.P.C. can also not be supported. The purpose of examination under section 313 Cr.P.C. must be understood. It is to give an opportunity to the accused appellant to explain the incriminating material which has come on record. Defective examination under section 313 Cr.P.C. will not vitiate the trial. It is for the accused to establish prejudice caused to him by proof as held in 2014 (10) JT 584 and 2015 (1) SCC 496. The prejudice caused resulting in miscarriage of justice must be established at the earliest before the Trial Court. In the instant case, this exercise was not undertaken. No detriment or disability has also been canvassed before us. Therefore, the plea of defective examination under section 313 Cr.P.C. cannot also be accepted.
For all the aforesaid reasons, therefore, this appeal calls for no interference and is accordingly dismissed.
As the accused appellant has been enlarged on bail, in view of the judgment passed this day, liberty is given to the accused appellant to surrender before the Court of the Additional Chief Judicial Magistrate, Contai within a fortnight from the date of receipt of this order. In default, the learned Additional Chief Judicial Magistrate, Contai will issue warrant of arrest against the accused appellant to secure his attendance to serve out the remaining term of the sentence.
Let a certified copy of this order be served through the department on the accused appellant. Another copy be served to the Assistant Sessions Judge, 1st Court Contai, who will supply a copy of the order to the Additional Chief Judicial Magistrate, Contai for compliance.
Criminal Section is directed to supply urgent photostat certified copies of this judgment to the parties, if applied for, upon compliance of all necessary formalities.
( Patherya, J. ) I agree.
(Indrajit Chatterjee., J.) PP.