Calcutta High Court (Appellete Side)
Priyanka Dutta vs State Of West Bengal & Ors on 10 April, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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.688 of 2016
Priyanka Dutta
Versus
State of West Bengal & Ors.
With
GA No.3 of 2015
State of West Bengal
Versus
Subhas Bhowmik @ Baban & Ors.
For the appellant in CRA 688/2016 : Mr. Bikash Ranjan Bhattacharya,
Ld. Sr. Advocate
Mr. Uday Sankar Chattopadhyay,
Mr. Sabyasachi Chatterjee,
Ms. Meenal Sinha,
Mr. Sourav Mondal,
Mr. Aniruddha Bhattacharyya,
Ms. Nabanita Dutta
For the State/Appellant in GA 3/2015
: Mr. Sudipta Maitra, Ld. Spl. P.P.,
Mr. Anand Keshri,
Mr. Biplob Das,
Mr. Vijay Verma
For the respondent no.4 in CRA 688/2016
: Mr. Sekhar Basu, Ld. Sr. Advocate,
Mr. Souvhik Mitter
For the respondent nos.2,3,5 & 6 in CRA
688/16 : Mr. Milon Mukherjee, Ld. Sr. Advocate,
Mr. Biswajit Manna
Heard on : 30/01/2017
Judgment on: 10/04/2017
Debasish Kar Gupta , J. :
These appeals are directed against judgment and order of acquittal
dated December 6, 2014, passed by the learned Additional District and
Sessions Judge, Fast Track Court-I, Howrah in Sessions Trial No.88 of
2012 acquitting the accused persons of the charge under Sections
302/120B of the Indian Penal Code (hereinafter referred to as I.P.C.) read
with Section 25 (1) (B) (a) of the Arms Act. The former appeal bearing GA
No.3 of 2015 is preferred by the State of West Bengal and the later one
bearing CRA 688 of 2016 is preferred by the victim (widow of the deceased
person).
The facts of the case in a nutshell as under:-
On May 6, 2011, at about 9.15 hours one Tapan Dutta (the
deceased person) of Paschim Santinagar went to Bally Police Station by
riding a motorcycle bearing No.WB12 X6370. One Sri Bablu Prosad (PW
1) was the pillion rider of his motorcycle. After submitting an application
for permission of a meeting of "Bally Jagacha Citizen Right and Protection
Forum", scheduled to be held on May 11, 2011, he was returning back at
about 21.45 hours. When he reached near Bally Bangasishu towards
Ghoshpara, District-Howrah, near a pond by the side of level crossing 5/6
persons aged about 25-30 years wearing pant shirt and one of them
wearing black ganji opened fire from their firearms aiming at the deceased
person. The PW 1 immediately jumped from the motorcycle and began to
run. The miscreants, after chasing him from a short distance fled away
towards Ghoshpara old State Bank, Howrah. The deceased person
sustained injuries and fell down on earth. He succumbed to those injuries
at the place of occurrence. According to the post mortem report, the
deceased sustained following injuries :-
i) One lacerated injury 3 inch x 2.5 inch into brain in the right
fronto temporal scalp with underlying piece meal fracture of
right temporal and right part of frontal bone and partial
extrusion of the brain matter ;
ii) Scalp hematoma 3 inch x 2 inch of left partial scalp adjoining
vertex ;
iii) Scalp hematoma 3 inch x 2 inch over left occipital scalp
adjoining mid line and vertex ;
iv) One gunshot wound of entry 1.5 x 1.5 inch with abrasion
collar of 2.5 mm at the upper pat placed over lateral aspect of
right lower arm, 2.5 inch bellow elbow. One dissection seen to
have piercing skin, fascia soft tissue fracturing piece meal the
right radius bone and finally with an exit wound ¼ inch x ¼
inch over right medial lower arm 4 inch bellow elbow ;
v) One gunshot wound of entry 3 inch bellow injury No.4 in the
same direction and parallel to injury No 4 and finally making
exit wound 7 inch bellow elbow on the medial aspect of right
lower arm ;
vi) One gunshot wound of entry ½ inch by ½ inch over upper
right lower leg, 4 inch bellow knee joint. On dissection seen to
have passed among horizontally fracturing piece meal the
right tibia at corresponding level and ricocheting upwards to
the medial thigh from where a bullet (deformed) was
recovered;
vii) One gunshot wound of entry over right lower lateral chest
wall with abrasion collar right more than left ¼ inch x ¼
inch, 7 inch right of mid line and 2 inch above costal marring.
On dissection the track passes through skin, intercostal
muscle then piercing diaphragm then the whole left of liver
and finally passing out from the lest anterior lower chests
wall as exit wound between 8 and 9 ribs closes to costal
margin ;
viii) One gunshot wound of entry measuring ½ x ½ inch over
posterior lateral right chest wall between 3rd and 4th rib, track
seem to have pierced skin, fascia right lungs with pleura,
heart, left lung with pleura, left lateral chest wall and coming
out as exit wound ¼ inch x ¼ inch over left anterolateral
chest wal 4 inch bellow left anterior axillary fold ;
ix) One gunshot wound of entry over lateral aspect of the right
upper arm on dissection seen to have gone deep up to left
humeral head ;
x) Abrasion 1 inch x 1 inch over right anterior upper chest wall
adjoining mid clavicle ;
xi) Abrasion 1 inch x 1 inch over right interior upper abdomen 1
and ½ inch bellow right costal margin.
According to the opinion of the doctor, the injuries show vital
reaction and the death was due to the gunshot injuries as noted above,
ante mortem and homicidal in nature.
A letter of complaint dated May 6, 2011, was received in the Bally
Police Station at 23.35 hours from the PW 1. The above complaint was
diarized in Bally Police Station under Entry No.421 at 23.35 hours. An
FIR bearing Bally P.S. Case No.205 of 2011, dated May 6, 2011, was
registered against unknown miscreants for commission of offence
punishable under Sections 302/34/120B I.P.C. read with Sections
25/27/35 of the Arms Act.
One Dudh Kumar Middey (PW 26), Assistant Sub-Inspector of
Police, Howrah Police Station, prepared inquest report (Ext.-11) on the
dead body of the deceased person at the Howrah General Hospital on May
7, 2011, at 9.35 hours with reference to Howrah P.S. Case No. 205/11
dated May 7, 2011. According to the preliminary investigation recorded in
the above inquest report, the deceased succumbed to the gunshot injuries
over his body caused by some unknown persons while he had been
proceeding towards Ghoshpara under Bally Police Station on the way
back from the above police station on May 6, 2011, at about 21.45 hours.
Initially Chanchal Nandi, Sub-Inspector of Police Bally Police
Station (PW 34) was appointed as investigating officer of the above case.
On May 12, 2011, the investigation was handed over to Sri Sandip
Ganguly (PW 34), Sub-Inspector of Police, Criminal Investigation
Department, SOG section, Homicide Squad, Bhawani Bhawan at Kolkata.
On August 30, 2011, charge sheet no.406/11 was submitted against five
accused persons, namely, (1) Subhas Bhowmick @ Baban, (2) Kartick Das
@ Bapi @ Sweti Bapi @ Lipstick Bapi, (3) Ramesh Mahato, (4) Sasthi
Gayen and (5) Ashit Gayen for commission of offence punishable under
Sections 302/34/120B I.P.C. and Sections 27/35 of the Arms Act keeping
the investigation pending for verification of some vital points and the
information which might stood vital evidences in support of proving the
charge against other accused persons whose names had been surfaced
during investigation.
On September 26, 2011, a supplementary charge sheet no.406A/11
was filed against two other accused persons, namely, (1) Santosh Singh @
Police and (2) B. Raju showing them absconder. According to the above
supplementary charge sheet, there was no evidence against 1) Govinda
Hazra, 2) Kalyan Ghosh, 3) Arup Roy, 4) Amit Pal Choudhury, 5) Babu
Mondal, 6) Panchu Begani, 7) Lakshmi Halder and 8) Paritosh Bar whose
names had been surfaced during investigation on the ground of alleged
long standing enmity with the deceased person over the alleged filling of
some canals in the area concerned. Thereafter, on June 5, 2014, a further
supplementary charge sheet no.406B/2014 was filed against one the
accused persons, namely, Subhas Bhoumik @ Baban for commission of
offence under Section 25 (1) (B) (a) of the Arms Act.
On August 29, 2012, charge was framed against accused persons
namely, (1) Ashit Gayen, (2) Sasti Gayen, (3) Kartick Das, (4) Subhas
Bhoumik @ Baban and (5) Ramesh Mahato for commission of offence
punishable under Sections 302/120B I.P.C. Subsequently, on November
29, 2004, additional charge was framed against accused Subhas
Bhoumik @ Baban for commission of offence under Section 25 (1) (B) (a)
of the Arms Act.
After considering the evidence of 36 prosecution witnesses, other
documentary evidences and statement of the accused persons recorded
under Section 313 Cr. P.C. the impugned judgment and order of acquittal
was passed.
It is submitted by Mr. Bikash Ranjan Bhattacharyya, learned Senior
Advocate appearing on behalf of the appellant in the former appeal
bearing CRA 688 of 2016 that from the evidence of PW 2, PW 11 and PW
25 the existence of Bally-Jagacha Jolabhumi Bachao Committee was
proved and the same was corroborated by the statement of PW 30
recorded under Section 164 Cr. P.C. Drawing our attention towards the
evidence of prosecution witnesses, it is further submitted by Mr.
Bhattacharyya that the learned Court below failed to appreciate the above
evidence on record and to arrive at a conclusion that the common
intention of the accused persons in furtherance to their acts to murder of
the deceased person was to stop the movement against filling up of water
body namely Joypur Bill near Bally-Jagacha where the construction of a
residential complex had been in progress at the instance of "Anmol Group
of Developers" with the aid and assistance of Maa Tara Developers.
Drawing our attention towards the evidence of PW 30 it is submitted by
him that the learned Court below ignored that there was corroboration of
the statement of PW 30 recorded under Section 164 Cr. P.C. with his
aforesaid evidence that a meeting of Jalabhumi Bacho Committee was
scheduled to be held on November 6, 2011. Drawing our attention
towards the evidence of PW 35, PW 17, PW 18 and Exhibits-4 and 8 it is
submitted by him relating to the recovery of two maps of the area where
the Joypur Bill was situated from the house of accused Sasti Gayen and
Asit Gayen and from a petrol pump leading to the statements of the above
accused persons Sasti Gayen was proved beyond doubt. According to
him, the learned Court below not only failed to appreciate the aforesaid
evidence but also there was failure on the part of the learned trial judge to
consider the involvement of accused Asit Gayen and Ramesh Mahato
apart from the aforesaid accused Sasti Gayen in commission of offence of
murder of the deceased person.
Mr. Bhattacharyya repeated and reiterated the submissions made
by Mr. Sudipta Maitra, learned Special P.P. with regard to recovery of one
bullet press head with blood stain from the place of occurrence, recovery
of firearms and ammunitions including bullet (fired in testing) from the
residence of Subhas Bhoumik @ Baban to submit that there was failure
on the part of the learned Court below to appreciate those evidences in its
proper perspective. It is also submitted by Mr. Bhattacharyya that
though the appellant being victim under the definition of Section 2 (wa)
I.P.C. had a little role to play, she conducted adequate steps approaching
the learned Court below for adducing further evidence by way of filing
application dated March 19, 2014 for adducing further evidence.
According to Mr. Bhattachryya, there was gross failure to ensure fair trial
by the learned Court below due to denial of such opportunity to the victim
(PW 25).
It is also submitted by Mr. Bhattacharyya that though the learned
Judge expressed his helplessness in the impugned judgment and order of
acquittal in case of faulty investigation, Section 311 Cr. P.C. confers
adequate power to the learned Court below to unearth the truth in a
criminal trial.
Reliance is placed by Mr. Bhattacharyya on the decisions of Hema
vs. State through Inspector of Police Madras reported in (2013) 10
SCC 192, S. Govindaraju vs. State of Karnataka reported in (2013) 15
SCC 315, Agnel Kujur vs. State reported in (2008) 1 CHN 860, Saroj
Kumar Das vs. State of West Bengal reported in (2016) Cri LJ 3602, R.
Shaji vs. State of Kerala reported in (2013) 14 SCC 266, Sharad
Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC
116 and Dhanabal & Anr. vs. State of Tamil Nadu reported in (1980) 2
SCC 84 in support of his above submissions.
It is submitted by Mr. Sudipta Maitra, learned Special Public
Prosecutor appearing on behalf of the appellant in the later appeal
bearing GA No.3 of 2015 that the prosecution case was proved beyond all
reasonable doubts on the basis of the underline tone of oral evidence of
the prosecution witnesses considering its intensive value thereof.
According to him, the prosecution case was proved beyond any reasonable
doubt on the basis of the evidence the place of occurrence, date and time
of occurrence and the manner in which the murder of the deceased
person took place. According to him, the learned Court below failed to
appreciate that the prosecution case was based upon circumstantial
evidence which was proved beyond any reasonable doubt in view of the
oral evidence of PW 1, PW 5, PW 27, PW 35, amongst others, as also
documentary evidence thereof.
It is further submitted by him that the seizure of empty case of
cartridge (Mat. Ext. I) was proved from the evidence of PW 3 and PW 4.
The cause of death of the deceased person as mentioned in the inquest
report prepared by PW 26 was corroborating with the post mortem report
prepared by PW 24. The seizure of firearm and ammunitions from the
house of Subhas Bhoumik @ Baban was proved from the evidence of PW
35 and PW 32 which was corroborating with Exbt.-7 Mat Ext.-II and III.
Though supplementary charge sheet no.406B/2014 had been filed
against Subhas Bhoumik @ Baban by the investigating agency on
November 29, 2014 for commission of offence under Section 25 (1) (B) (a)
of the Arms Act as also added and charge was framed against the
aforesaid accused person on November 29, 2014 for commission of such
offence, the learned Trial Court was in error not to appreciate the
aforesaid evidence, both oral and documentary while passing the
impugned judgment and passed order of acquittal against the aforesaid
accused Subhas Bhoumik @ Baban, amongst others. It is also submitted
by Mr. Maitra that the learned single Judge failed to exercise his power
under Sections 165 or 311 Cr. P.C. while passing the impugned judgment
and order of acquittal.
Reliance is placed by Mr. Maitra on the decisions of Durgacharan
Nayak & Ors. vs. State of Orissa reported in AIR 1966 SC 1775, C.
Ronald & Anr. vs. State U.T. of Andaman and Nicobar Island reported
in 2012 Cri LJ 672, Tapandass & Anr. vs. Sosti Dass reported in AIR
1986 Cal 390, Bhajju @ Karan Singh vs. State of M.P. reported in 2012
Cri LJ 1926 and Bhagwan Singh vs. The State of Haryana reported in
(1976) 1 SCC 389 in support of his above submissions.
According to Mr. Sekhar Basu, learned Senior Advocate appearing
on behalf of one of the accused persons namely, Ramesh Mahato, the
charge framed on August 29, 2012, was not sustainable in law.
According to the aforesaid charge, the accused persons agreed to do the
illegal act of killing of the deceased person at any time at any place.
Drawing our attention towards the fact that the accused Ramesh Mahato
was in jail custody it is submitted by him that the allegation of holding
threat or restraining the deceased person to organize any movement
against alleged filling up of water body was not accepted by the learned
trial Court correctly.
According to him, the charge of commission of offence punishable
under Section 120B I.P.C. was not sustainable in view of the framing of
the above erroneous charge. It is further submitted by Mr. Basu that the
evidences of PW 16 and PW 30 did not fulfil the requirement of sub-
section (1) of Section 32 of the Indian Evidence Act. It is also submitted
by him on the basis of the statements made in Court with regard to their
respective statements made under Section 164 Cr. P.C. could not be
considered for the purpose of corroboration or contradiction in absence of
proving of their evidences in Court. The statements made under Section
164 Cr. P.C. by the aforesaid witnesses were not properly proved in Court.
It was further submitted by him that no question was put to the above
accused person in course of recording his statement under Section 313
Cr. P.C. in connection with the statements made by PW 16 and PW 30
under Section 164 Cr. P.C.
Drawing our attention towards the evidences of PW 11, PW 13 and
PW 14 it is submitted by him that there was no order of restraining the
persons concerned to raise construction in question. As a result the
question of resistance to raise construction was not correctly accepted by
the learned trial Court. According to him, the victim (PW 25) did not
bring any substantive evidence before the Court in support of Ext.10.
Consequent thereupon, there was no scope to give further consideration
to the documents mentioned in the above exhibit.
Reliance is placed by Mr. Basu on the decisions of Subhash @
Dhillu vs. State of Haryana reported in (2015) 12 SCC 444, Baliya @
Bal Kishan vs. State of M.P. reported in 2012 (7) Supreme 465,
Babubhai Bhimabhai Bokhira & Anr. vs. State of Gujarat & Ors.
reported in (2014) 5 SCC 568, State of Delhi vs. Shri Ram Lohia
reported in AIR 1960 SC 490, Ramanlal Rathi vs. The State reported in
AIR (38) 1951 Calcutta 305, Ukha Kolhe vs. State of Maharashtra
reported in AIR 1963 SCC 1531 and Bahal Singh vs. State of Haryana
reported in AIR 1976 SC 2032 in support of his above submissions.
It is submitted by Mr. Milon Mukherjee, learned Senior Advocate
appearing on behalf of 4 other accused persons namely, (1) Ashit Gayen,
(2) Sasti Gayen, (3) Kartick Das and (4) Subhas Bhoumik @ Baban that
the victim (PW 25) initially filed three petitions before the learned Court
below on one pretext or other. Ultimately, she filed a petition dated March
19, 2014, for recalling the above witness for adducing further evidence.
Our attentions have also been drawn towards the fact that the statement
of PW 25 was recorded under Section 161 Cr. P.C. on May 12, 2011. She
was not inclined to record her statement under Section 164 Cr. P.C. On
March 22, 2012, the case was committed to the Court of learned
Additional District and Sessions Judge for trial. An application under
Article 226 of the Constitution of India bearing W.P. No.12526 (W) of 2012
was filed by the above victim challenging the investigation. Her evidence
was recorded in Court on September 24, 2013. According to Mr.
Mukherjee, the petition dated March 19, 2014, was filed by the above
victim at a belated stage and as a result the same was rejected by the
learned Court below by an order dated May 8, 2014, with an observation
that she was in the habit of submitting petitions on one pretext or other.
According to Mr. Mukherjee, Ext.10 was nothing but a list of some
document. According to him, the allegations of the above victim with
regard to presence of a motive on the part of the accused persons or their
enmity with the deceased person, negligence in investigation, negligence
of the learned Public Prosecutor to conduct the trial properly or failure on
the part of the learned Court below to appreciate the evidence properly
were not based on materials on evidence.
Mr. Mukherjee repeated and reiterated the submissions of Mr.
Sekhar Basu, learned Senior Advocate in respect of the evidence of PW 16
and PW 30 in connection with their respective statements made under
Section 164 Cr. P.C. It is further pointed out by him that PW 25 did not
disclose the names of the accused either in police station or in her
statement recorded under Section 161 Cr. P.C. Therefore, there was no
corroboration of the statements made by PW 16 and PW 30 under Section
164 Cr. P.C. in this regard. Drawing our attention towards the evidence
of PW 24 who had conducted the post mortem examination over the dead
body of the deceased person read with the post mortem report, it is
submitted by Mr. Mukherjee that there was a doubt that whether the
gunshot injuries detected in the body of the deceased person were anti
mortem in nature. It is also submitted by him that in absence of ballistic
report with regard to the seized empty case of cartridge, the nexus of the
seized firearm and ammunitions with the commission of offence question
was not proved.
Reliance is placed by Mr. Mukherjee on the decisions of Brij
Bhushan Singh vs. Emperor reported in AIR (33) 1946 PC 38,
Ramanlal Rathi vs. The State reported in 1951 Cr LJ(52) 301 and
Dhanna vs. State of Madhya Pradesh reported in AIR 1996 SC 2478 in
support of his above submissions.
We have heard the learned Counsel appearing for the respective
parties at length and have considered the facts and circumstances
involved in this appeal carefully.
It will be profitable for us to recollect the broad principles of law
relating to the power conferred upon the High Court in case of hearing an
appeal against a judgement and an Order of acquittal passed in a trial.
In dealing with an appeal in case of acquittal the appellate Court
must bear in mind that the accused starts with a double presumption in
his favour; first the presumption of evidence, and secondly the accused
having secured an acquittal the Court will not interfere until it is shown
conclusively that the inference of guilt is irresistible or that the finding of
the lower Court is not justified by the evidence. In Sheo Swarup Vs. King
Emperor, reported in AIR 1934 PC 227, it was observed by the Privy
Council that in dealing with an appeal from acquittal on a matter of fact,
the High Court has full power to review at large the evidence and to reach
the conclusion that upon the evidence the order should be reversed giving
proper weightage and consideration to such matters.
The above issue came up for consideration before the Hon'ble
Supreme in the matter of Prandas Vs. State, reported in AIR 1954 SC
36, when the matter had been heard by six Hon'ble Judges and the
principle enumerated by Privy Council in Sheo Swarup (Supra) was wholly
approved. A concise statement of law on this issue is available from a
judgement delivered by this bench in Smt. Fultusi Ray Vs. State of
West Bengal, reported in (2015) 2 CAL LT 50 (HC).
The first contention of Mr. Bikash Ranjan Bhattacharya, was that
the existence of Bally-Jagacha Jolabhumi Bachao Committee was proved
and that the common intention of the accused persons in furtherance of
their act for commission of offence was to stop the movement against
filling up of water body, namely Joypur Bill near Bally -Jagacha where the
construction of a residential complex had been in progress at the instance
of "Anmol Group of Developers" with the aid and assistance of "Maa Tara
Developers".
The PW 1 was the FIR maker. According to his evidence he was a
member of "Bally-Jagacha Citizen Rights and Protection Forum". A
meeting of the above organization was scheduled to be held on May
11,2011. The deceased was another member of the above organization.
On May 6, 2011, the PW 1 and the deceased went to the Bally police
station for obtaining permission of the aforesaid meeting. At about 21.45
hours, when PW 1 and the deceased were returning from the Bally police
station riding on a motor cycle driven by the deceased, near Jora
Aswathhatala railway level crossing after crossing Bango Sishu Bidyalaya,
assailants started firing from their firearms aiming at them.
The above movement of Jala Bhumi Banchao Committee for saving
wetland from the danger of filling up, in which organization the deceased
was an active member, was corroborated by the evidence of PW 2, the
scribe of the written compliant of the PW 1. It surfaced from his evidence
that the police had arrived at the place of occurrence when PW 1
described the incident to him. He was not shaken in cross-examination.
According to the evidence of PW 5 in cross-examination, a resident
of the locality concerned, he heard that the deceased was associated with
Paribesh Rakha Committee.
The PW 11, a worker of "Anmol Group of Developers", stated in his
evidence that "South City Project" and "W.P.S.T.D.C." undertook a project
with "Anmol Group of Developers" for construction of an industrial park
at Mouja- Jagadishpur and Joypur. One Jhola Bhumi Committee raised
protest in the matter.
The PW 13, a worker attached to "South City Project" during 2004-
08, stated in his evidence that they had engaged "Maa Tara Developer",
consisting of local inhabitants, for procurement and development of land.
It was further stated by him that in 2009-10 One Tapan Dutta had raised
objection in respect of their project work at Jagadishpur mouja, Police
Station - Liluah.
The PW 16, an Environmental Worker, stated in his evidence that
the deceased took active role in the matter of saving wet land near Bally-
Jagacha bill. He was not shaken in his cross-examination in that regard.
The PW 25, who is the appellant in the former appeal, stated in her
examination-in-chief that that her husband, the deceased, had formed an
organization under the name and style Jala Bhumi Bachao/ Raksha
Committee. Some resistance had been faced by her deceased husband in
the functioning of that organization.
The PW 30, a campaigner of Human Rights and Environments,
stated that the deceased started movement for saving the Jaypur wet
land.
According to the evidence of PW 35 (I.O.), on August 27, 2011, two
maps of Joypur Bill had been recovered and seized from the house of
accused Sasti Gain and Asit Gain and a petrol pump respectively, leading
to the statements of the above accused.
The above seizures were proved by the evidence of PW 31(Ext. 5/2
& 6/2 respectively).
The prosecution case was based on circumstantial evidence. The
above evidences were relating to very important facts in order to make an
attempt to find out chain of events to ascertaining the scope of
involvement of the accused in commission of the offence with the aid of
other equally important evidence on record.
In State of Karnataka Vs. V.K. Gopalkrishna, reported in (2005)
9 SCC 291, it has been held by the Apex Court that in the event the
findings of the trial court suffer from serious illegality including ignorance
or misreading of evidence on record, the appellate court will be justified in
setting aside an order of acquittal and the relevant portion of the above
judgement is quoted below:-
"17. We are conscious of the fact that we are dealing with an appeal
against an order of acquittal. In such an appeal the appellate court does not
lightly disturb the finding of fact recorded by the court bellow. If on the
basis of the same evidence, two views are reasonably possible, and the
view favouring the accused is accepted by the court bellow, that is sufficient
for upholding the order of acquittal. However, if the appellate court comes to
the conclusion that the finding of the court bellow are wholly unreasonable
or perverse and not based on the evidence on record, the appellate court
will be justified in setting aside such an order of acquittal. We find this case
to fall under the latter category. We find no rational justification for the
conclusion reached by the High Court. The High Court has misread the
evidence on record and has completely ignored the relevant evidence on
record which was accepted by the trial court. We, therefore, allow the
appeal, set aside the impugned judgement and order of the High Court and
restore the judgement and order of the trial Court. The respondent shall be
taken into custody forthwith to serve out the remainder of the sentence. His
bail bonds are cancelled."
(Emphasis supplied)
The learned court below though arrived at a conclusion that the
incident took place at Bally Level crossing/ Bally Jora Aswathatala Level
crossing, completely misread the above evidence on record to arrive at a
finding that the above prosecution witnesses could not specifically state
as to who raised the protest. We find no rational justification for not
reading the evidence of PW 1, PW 2, PW 5, PW 16, PW 25 and PW 30
along with that of PW 11 as a whole in order to proceed further on the
basis of the other evidence available on record in quest of bringing out the
truth in the prosecution case of alleged nexus of murder of the deceased
with the movement of saving the wet land in question from the hands of
the land developers in which the deceased took an active role. Therefore,
the learned court below ignored the relevant evidence on record and for
that reason the impugned judgement and order was wholly unreasonable
or perverse not being based on evidence on record.
In view of the distinguishable facts and circumstances the decisions
of Subhash @ Dhillu (supra) and Baliya @ Bal Kishan (supra) cited by
Mr. Sekhar Basu do not help the respondent no.4 in the former appeal.
Regarding the second contention of Mr. Bhattacharya regarding the
scope of consideration of the statements made by the PW 16 and PW 30
respectively, recorded under Section 164 Cr.P.C. it has to be borne in
mind that the provisions of above Section applies to all sorts of confession
whether made by a person accused of an offence or not. The distinction
between "statement" not amounting to confession and "confession"
appears to have reference only to the different modes in which it has to be
recorded under sub-sections (4) and (5) of Section 164 Cr.P.C. All
statements by witnesses to the police are shut out by Section 162 except
for the strictly limited purpose of contradiction of prosecution witnesses
during trial. This rule of law have the origin because the unreliability of
the police and their tendency to adopt questionable methods for extorting
statements. So, the intention of recording statement of a witness under
Section 164 Cr.P.C. is to protect person against extortion or oppression by
them. The presence of a Magistrate to safeguard is equivalent to police
influence. The statement recorded under Section 164 is not substantive
evidence. It can be used either for contradiction or for corroboration.
Therefore, the purpose of recording the statement of a witness is under
Section 164 Cr.P.C. is generally to fix him to it when it is feared that he
may resile afterwards or may be tampered with. Further, the mere fact
that the statement was previously recorded under Section 164 Cr.P.C. will
not be sufficient to disregard it. When the witnesses have themselves did
not support their version, their statement earlier recorded under Section
164 Cr.P.C. could not be available to the prosecution for their
corroboration. It could, to the maximum be used for prosecution for their
contradiction. In Phoolchand vs. State of U.P., reported in 2004 Cr.LJ
1904, it was observed by the Apex Court that it would be a fallacy of a
legal approach to have reliance upon the statement of a witness recorded
under Section 164 Cr.P.C. and thereby to record conviction of the accused
persons on that basis. It has further been observed by the Hon'ble
Supreme Court in Sawal Das vs. State of Bihar, reported in (1974) 4
SCC 193 that the omission to produce as prosecution witness a person
whose statement recorded under Section 164 could be used to
corroborate or contradict him if he had appeared as a witness would
entitle the accused to ask the Court to give him benefit of presumption
under Section 114 (g) of the Evidence Act. Upon consideration of facts
and circumstances of the case in hand we find that neither PW 16 nor PW
30 absent from adducing evidence before the Court. Nor any one of them
retracted from their earlier stand to support the prosecution case
regarding their statements before the Court. Therefore, the statement
recorded by the aforesaid prosecution witnesses under Section 164
Cr.P.C. looses its importance due to availability of their substantive
evidence before the Court in support of the prosecution case instead of
retracting from their stand taken at the investigation.
With regard to the decision of Sri Ram Lohia (supra) we are of the
opinion that the settled principles of law declared in the above decision
does not help the respondent no.4 in the former appeal in view of our
observation made hereinabove. Similarly the decision of Bahal Singh
(supra) does not help the above respondent on the ground that retrial is
not necessary in the case in hand on the ground that two reasonable
conclusions can be reached on the basis of the evidence on record.
The decision of Brij Bhushan Singh (supra), the Privy Council did
not accept the procedure adopted by the Chief Court in accepting the
statement made under Section 164 Cr.P.C. by two prosecution witnesses
as substantive evidence but the facts and circumstances in the case in
hand is not similar to the above fact. So, it does not help the respondent
nos.2, 3, 5 and 6 of the former appeal.
Regarding the next contention of Mr. Bhattacharya with regard to
the nexus of seizure of two maps of Joypur Bill area from the house of
accused Sasti Gayen and Asit Gayen as also other one from a petrol pump
of the area concerned leading to the statement of the above accused
persons, we are of the opinion that the learned Trial Judge failed to take
into consideration the fact of above seizure misreading the deposition of
an employee of that petrol pump (PW 17) that there was no nexus of
Joypur Bill with those maps.
Regarding the next contention of failure on the part of the trial
court to take necessary steps in exercise of power conferred under the
provision of section 311 Cr.P.C., it necessary to observe that section 311
Cr.P.C. read with section 165 the Indian Evidence Act confer vast and
wide power on the court to play an active role in the evidence collecting
process in monitoring the proceeding in aid of justice consisting of two
parts, namely, (i) to summon any one as witness or to examine any
person present in court or to recall any witness for re-examination, and
(ii) to take any of the above steps if the new evidence appears to be
essential to the just decision of the case provided that the court is bona
fide of the opinion that for the just decision of the case, the step must be
taken. Reference may be made to the decision of Himanshu Singh
Sabharwal Vs. State of M.P.,reported in (2008) 3 SCC 602.
The learned court below further found that Ext. 10 was a seizure
list in respect of the seizure which had taken place on May 12, 2011, at
the house of the deceased containing petitions dated March19, 2010, and
Sepember 5, 2010, i.e. prior to the murder of the deceased, written in the
letter heads of "Jala Bhumi Bachao Committee of the deceased addressing
IG, South Bengal, SP Howrah, I.C., Liluah P.S., respectively, as also three
photographs of Jaypur Bill in question taken on February 27, 2010, by
the deceased showing some filling and construction work. Though the
learned court bellow observed that those documents were indeed very
vital in order to ascertain the existence of Jaypur Bill in question and the
apprehension of the deceased relating to the same prior to his death, the
court expressed its helplessness consequent upon non-production of
those documents before the court during trial by the prosecution.
From the above observation of the learned court bellow there was
not even an iota of doubt that the prosecution failed to produce some
evidence which was necessary for a just and proper disposal of the case.
At this stage we cannot forget that we are dealing with former
appeal at the instance of an appellant who is a victim under the newly
incorporated provision of clause (wa) of section 2 Cr.P.C.. It has been held
by the Apex Court in Mina Lalita Barua Vs. State of Orissa, reported in
AIR 2014 SC 782, that it is true that under the provision of sub-section
(2) of Section 301 Cr.P.C. the right of a private person to participate in the
criminal proceeding has got its own limitation in the conduct of the
proceeding. But ingredients of section 311 Cr.P.C. empowers the court in
order to arrive at a just decision to resort to an appropriate measure
befitting the situation in the matter of examination of witnesses. The
relevant portion of the above decision are quoted below:-
"21. Having referred to the above statutory provisions, we could discern
that while under section 301(2) the right of a private person to participate in
the criminal proceeding has got its own limitations, in the conduct of the
proceeding, the ingredients of section 311 empowers the trial court in order
to arrive at a just decision to resort to an appropriate measure befitting the
situation in the matter of examination of witnesses. Therefore, a reading of
sections 301 and 311 together keeping in mind a situation like the one on
hand, it will have to be stated that the trial court should have examined
weather invocation of section 311 was required to arrive at a just decision.
In other wards even if in the consideration of the trial court invocation of
section 301(2) was not permissible, the anomalous evidence deposed by
PW-18 having been brought to its knowledge should have examined the
scope of invoking section 311 and set right the position. Ultimately, as
stated earlier, the trial court was in a great hurry in rejecting the applicant's
application without actually relying on wide power conferred on it under
section 311 for recalling PW-18 and ensuring in what other manner, the
grievance expressed by the victim of a serious crime be remedied. In this
context, a reference to some of the decisions relied upon by the counsel for
the appellant can be usefully made."
(Emphasis supplied)
Pertinent to mention here that the learned counsel appearing for
the first respondent-State in the above matter contended that that the
application for re-calling had been filed by the appellant ten months after
the PW-18 was examined and, therefore, on the ground of delay as well
the grievance of the appellant could not be redressed.
Now, coming back to deal with another peculiar fact and
circumstances that the appellant in the former appeal, who was PW 25 in
the trial, filed an application dated March 19, 2014, before the learned
court bellow praying for allowing her to adduce further evidence by way of
recalling under section 311 Cr.P.C. One of the grounds mentioned in that
application was the ignorance of the learned public prosecutor to enable
PW 25 to state relevant facts before the court in course of adducing her
evidence. The learned court below rejected the above application
observing that the PW 25 had been in the habit of making applications on
one pretext or other and that the application deserved an order of
rejection on the ground that it had been submitted at a belated stage. So,
application of the above settled principle of law to the aforesaid facts and
circumstances leads to an irresistible finding that the learned court
bellow should have examined whether invocation of section 311 Cr.P.C.
was required to arrive at a just decision. Even in the consideration of the
trial court invocation of sub-section (2) of section 302 Cr.P.C. was not
permissible, the scope for invoking section 311 Cr.P.C. should have been
examined to bring the seized articles contained in Ext. 10 as also to allow
the PW 25 to adduce further evidence by way of re-calling
notwithstanding consideration of the period of delay in filing her
application.
Let us now consider the contention of Mr. Sudipta Maitra, learned
Special Public Prosecutor appearing on behalf of the appellants in the
later appeal bearing G.A. 3 of 2015 filed by the State of West Bengal. Mr.
Bikash Ranjan Bhattacharya, learned Senior advocate appearing on
behalf of the appellant in the former appeal bearing CRA 688 of 2016 also
repeated and reiterated the statements made by Mr. Maitra with regard to
the findings of the learned Court below in arriving at a conclusion in
respect of the additional charge framed on November 29, 2004 against
accused Subhas Bhoumik @ Baban for commission of offence under
Section 25 (1) (B) (a) of the Arms Act.
According to the evidence of PW 35 (the second I.O.), on June 8,
2011 he had conducted a raid in the house of accused Subhas Bhoumik
@ Baban situated at Rishra. He was accompanied by PW 31 and PW 32
both Sub Inspectors of Police, posted at CID, Bhabani Bhawan at the
material point of time. In course of the above raid one country made pipe
gun along with 188 mm bullet was recovered and seized from the
possession of accused Subhas Bhoumik @ Baban from his above house.
He further stated that the seizure list (Exbt.-7/1) was prepared by PW 31
bearing his signature. According to his deposition the improvised country
made pipe gun was exhibited as Mat Exhibit-III. The above pipe gun was
loaded when it was seized. He further adduced that the label relating to
country made pipe gun and one round of 8 mm live ammunitions
contained his signature. The signature over the labels were marked as
Exbt.-13/1 and 14/1. He was not shaken during cross-examination with
regard to his above statements.
The above evidence of PW 35 was further corroborating with that of
PW 32 also proved his signature on the above seizure list marking the
same as Exbt.-7/2.
The learned Court below while considering the fact of the above
seizure of improvised country made pipe gun with ammunition from the
house of accused Subhas Bhoumik @ Baban, amongst others, that during
cross-examination the PW 35 took into consideration, amongst other, that
at the time of search and seizure in question no arm expert was present
with the raiding party. Though PW 33, Assistant Director, Ballastic
Department, Forensic Science Laboratory, Calcutta, in her deposition
stated that the arms in question was "single short improvised pistal", the
learned Trial Judge considered her statement as "one pistal" was
examined by the above witness. The learned Trial Judge did not take into
consideration that apart from one local witness, namely PW 21 there were
other witnesses namely PW 31 and PW 32 apart from the I.O. (PW 35). No
reason has been assigned by the learned Court below to arriving at a
conclusion that the evidence of PW 31 or PW 32 were not creditworthy
assigning any reason therefor.
That apart, we cannot ignore the fact of seizure of one blood stained
empty bullet and empty cartridge from the place of occurrence seized on
the date of incident. The same have also been brought on record as Mat
Exbts. I and III and the signature of the above prosecution witness was
also proved and exhibited as Exbt.-2/2 by him. Neither the same was
sent for obtaining Ballastic Report from the Forensic Science Laboratory
at Calcutta nor the above seized articles were taking into consideration by
the learned Court below for a just decision in the matter in accordance
with law as discussed hereinabove.
Therefore, we are of the opinion that the findings of the learned
Court below with regard to the above aspect were not based on evidence
on record or not justified by proper assessment of the evidence on record
coupled with taking proper steps for a just decision of the case.
Therefore, we find substance in the submissions made by Mr. Maitra,
learned Special Public Prosecutor appearing for the appellant-State in
G.A. No.3 of 2015 that the above evidences were relating to very important
facts in order to make an attempt to find out the chain of events for
ascertaining the scope of involvement of accused Subhas Bhoumik @
Baban, amongst other accused persons in commission of offence
punishable under Sections 25/27 of the Arms Act.
In the decision of Ramanlal Rathi (supra), it was decided that
seriousness of a case could not be a ground for retrial. But in the case in
our hand direction for retrial is necessary on the grounds discussed
hereinabove which are not similar to the above ground. The decision of
Ukha Kolhe (supra) does not help the respondent no.4 in the former
appeal because it has been held hereinabove that the trial was vitiated by
serious irregularities or illegalities.
Since the reasons for arriving at a conclusion in the case in hand
for retrial is based on particular reasons setforth hereinabove, the
decision of Ramanlal Rathi (supra) has no manner of application in the
former appeal.
In the decision of Dhanna (supra), the Hon'ble Supreme Court
discussed unwritten rules of adjudication consistently followed by the
Hon'ble Judges of the Apex Court while dealing with appeals against
acquittal. Since there is no departure from adherence of the above
unwritten rules in arriving at a conclusion in the case in hand, we do not
think that the above decision has no manner of bearing on the case in
hand.
In view of the discussion and observation made hereinabove, the
impugned judgement and order of acquittal are quashed and set aside
with direction upon the trial court to invoke the power conferred under
section 311 for limited purpose of bringing the seized document contained
in Ext. 10 in accordance with law as also to allow the prosecution and/or
the appellant in the former appeal (PW 25) to adduce further evidence by
way of re-calling as also allowing the accused persons to cross-examine
her and, thereafter, to record further statements of the respondent Nos. 2
to 6 under section 313 Cr.P.C. afresh. Needless to mention that in the
event prayer is made by either of the parties for adducing further
evidence, the same shall be considered by the learned Trial Judge in
accordance with law in order to unearth the truth.
It will not be out of context to record here that this judgement is
passed pending an application filed by the appellant under Article 226 of
the Constitution of India in the matter of Protima Dutta Vs. State of West
Bengal (in Re: W.P. 12526 (W) of 2012) with a prayer for a direction upon
the Central Bureau of Investigation to investigate in connection with the
aforesaid FIR bearing Bally P.S. Case No.205 of 2011, dated May 6, 2011.
The Hon'ble Supreme Court after considering Special Leave to Appeal
(Crl.) in the matter of Sasti Gayen vs. Protima Dutta & Ors. (In re:-
Crl.M.P. No.1083/2017) passed final order dated January 27, 2017 as
follows:-
"CRIMINAL APPEAL NO (S). 179 OF 2017
(Arising out of SLP (Crl.) No. 821 of 2017)
(Arising out of SLP (Crl.) Crl.M.P. No.1083/2017)
SASTI GAYEN . . .APPELLANT (S)
VERSUS
PROTIMA DUTTA & ORS. . . .RESPONDENT (S)
ORDER
1. Application seeking permission to file special leave petition is allowed.
2. Leave granted.
3. As all the contesting parties are before us, we are inclined to pass final orders in the matter.
5. On due consideration and taking into account the order of acquittal passed by the learned trial Court, which is presently under challenge in the High Court, we are of the view that the said appeal shall be heard in the first instance and, thereafter, if required the writ petition seeking order for further investigation by the CBI may be considered by the High Court.
6. With the aforesaid modification of the order of the High Court the appeal is allowed.
. . . . . . . . . . . . . . . .,J.
(RANJAN GOGOI) . . . . . . . . . . . . . . . . ., J.
(ASHOK BHUSHAN) NEW DELHI JANUARY 27, 2017"
According to the above order dated January 27, 2017, passed by the Hon'ble Supreme Court these appeals (CRA 688 of 2016 and GA 3 of 2015) should be heard in the first instance and, therefore, if required the writ petition seeking order for investigation by the Central Bureau of Investigation may be considered by this Court.
These appeals are, therefore, allowed and disposed of.
Let this judgment together with the Lower Court's records be sent back to the learned Court below expeditiously.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)