Calcutta High Court
Ranjit Chakraborty And Ors. vs State Of West Bengal on 8 February, 2007
Equivalent citations: 2007(4)CHN318
Author: Dipankar Datta
Bench: Dipankar Datta
JUDGMENT Amit Talukdar, J.
1. This appeal is directed against the judgment and order dated 20.8.2002, passed by the learned Sessions Judge, Barasat in Sessions Trial No. 1(1) 1992. The four appellants -- Ranjit Chakraborty @ Rana Asit Biswas @ Manai, Dulal Paul @ Dola Paul and Dulal Das (hereinafter referred to as 'Al', 'A2', 'A3' and 'A4' respectively) were found guilty by the learned Sessions Judge, in respect of the charge of Section 302/34 of the Indian Penal Code and were sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/- each; in default, to suffer rigorous imprisonment for six months. The present appellants faced the Trial along with two others -- Apurba Parial @ Kochan and Tapash Singha Roy @ Bhari, who stood acquitted. However, the co-accused Babuni expired.
2. The appeal has been argued in part by Mrs. Bhattacharya learned Advocate for Al and Shri Ganguly, learned Advocate for A2, A3 and A4 separately,
3. Mrs. Bhattacharya submitted that the entire conviction of the present appellants was based on the Dying Declaration (Ext, 6) and the evidence of the eye-witnesses, Her submission was that the Dying Declaration, which was mainly relied upon by the learned Sessions Judge, was an unsigned document and moreover although a duty staff was shown to be present yet he did not attest the same. She further submitted that in the said Dying Declaration there is no certificate by the doctor that the deceased was in a fit, state to make the Dying Declaration. Accordingly, she submitted that the Dying Declaration cannot be accepted in view of the aforesaid defects.
4. Mrs. Bhattacharya further submitted that the appellants were put on trial along with Kochan, Bhari (both since acquitted) and Babuni, having died earlier. According to her, the evidence was common in respect of the said accused persons, who have since been acquitted and in the absence of any specific proof of common intention it would be unsafe to uphold the conviction of the present appellants on the basis of the said evidence.
5. According to Mrs. Bhattacharya the entire evidence of P.W. 1, the sister of the deceased, who lodged the First Information Report, should be wholly disbelieved, as she has stated that she took the victim to the Habra State General Hospital and on the way she lodged the Written Complaint; but, if the evidence of P.W.5 is seen it would be found that after the victim was admitted at the Habra Hospital he found P.W. 1 to come to the said Hospital. As such, in view of the incongruous position the evidence of the Complainant has to be rejected.
6. Referring to the various contradictions in the evidence and on account of non-examination of the Elder Brother of the deceased and non-production of the Bed Head Ticket, bed-sheet. Sketch Map etc. Mrs. Bhattacharya, learned Advocate submitted that the Trial was vitiated and the conviction of the appellants should be set aside.
7. Shri Ganguly, learned Advocate adopted the submissions of Mrs. Bhattacharya and by way of supplementing her submission he has submitted that the Exts. 6 and 8 the Dying Declaration, recorded at Habra State General Hospital and Injury Report of the R.G. Kar Medical College & Hospital respectively should be discarded. He submitted that there was serious difference in the Dying Declaration (Ext. 6), recorded at Habra State General Hospital by P.W. 14 and the Injury Report (Ext. 8), prepared at the R.G. Kar Medical College & Hospital subsequently, as the name of the assailants mentioned by the patient (Ashoke Sarkar) and the party, were quite different and accordingly, Shri Ganguly was of the view that the same should be totally disbelieved.
8. Further Shri. Ganguly, learned Advocate for A2, A3 and A4 submitted that the evidence of P.Ws. 1, 4, 5, 7 and 8 touching on the evidence of chasing Ashoke Sarkar (deceased) by the appellants along with the other accused did not convincingly show the involvement of the appellants with the crime.
9. Learned Additional Public Prosecutor with K. Jalal Ahmed learned Advocate at the very outset submitted that the incident was of 1986 and the witnesses were deposing in Court in the year 1997; as such, after a delay of so many years they were liable to forget and as a result of which several contradictions may be there which has to be ignored and the Court should arrive at the actual truth. He submitted that in view of the fact that P.W.9 turned hostile an important part of the Prosecution Case has been left out; but, on the basis of the other remaining evidence the Prosecution Case has to be reconstructed. He further submitted that even if P.Ws. 2, 3, 6 and 9 have turned hostile their evidence cannot be brushed aside fully; but, relevant portion of the same which tallied with the Prosecution Case should be accepted.
10. Learned Additional Public Prosecutor submitted that the evidence of P.Ws. 4, 5, 7 and 8 clearly speak with regard to the chase, made by the appellants, which clearly shows their motive for murder.
11. Learned Additional Public Prosecutor also referred to the examination of the appellants under Section 313 of the Code of Criminal Procedure and as they had taken a plea of alibi it was incumbent upon them to prove the same and failure to do so goes against the appellants themselves.
12. Learned Additional Public Prosecutor further submitted that the Dying Declaration and the evidence of the eye-witnesses, who saw the appellants chasing the deceased, are sufficient to uphold the conviction and as there was no merit in the appeal the same should be dismissed.
13. After we have heard the submissions made at the Bar we would now consider the same and see as to whether the conviction can be affirmed on the basis of the evidence on record.
14. The appellants along with two others -- Apurba Parial and Tapas Singha Roy were directed to answer the charge of Section 302/34 of the Indian Penal Code. Out of them two have been acquitted by the learned Trial Court mainly on the ground that in the Dying Declaration (Ext. 6), recorded by P.W. 14, specifically the name of the present appellants appeared and they were the common factor in the evidence of the witnesses, who spoke with regard to the chase. The names of the two others were not consistent and were confused by the concerned witnesses as a result of which they were given the benefit of doubt.
15. The prosecution in order to establish its case has examined as many as 20 witnesses. It would be helpful to separately deal with different categories of witnesses, who have spoken with regard to the Prosecution Case.
16. P.Ws. 4, 7 and 8 were purportedly the eye-witnesses, who had seen the appellants chasing Ashoke Sarkar, the brother of P.W. 1, who entered into a room where he was subsequently done to death.
17. Next, there is the Medical Evidence. P.W. 13 was the Assistant Chief Medical Officer of Health (ACMOH), 24-Parganas. But he had nothing to do with the present case. P.W. 14 was the Medical Officer attached to the Habra State General Hospital. He examined the deceased at 08.20 p.m. on the date of incident. He found three injuries on the person of the deceased Ashoke Sarkar which are quoted here in below:
1) One lacerated wound 1 x 1 inch found superficial in right parietal region,
2) Penetrating wound point of entry-chest below left nipple.
3) Point of exit - left side of back subcostal region.
He found the patient was conscious; it first; but gradually became unconscious. He recorded the Dying Declaration of the deceased in a question answer form from where it appears that he has named the present appellants and one Bablu. The Dying Declaration which has been marked as Ext. 6 reveals it was in a question answer form. We would quote the relevant portion of the same for a better grasp of the situation:
Q. What you have been struck with? A. I have been shot.
Q. Who are the ones that shot you? A. Dula, Monai, Dola, Bablu, Rana. Q. Do you know the name of their's fathers? A. No.
18. The said Declaration shows that an on duty staff was witness; but, neither his name nor his signature was attested. The said Declaration further reveals that the "Patient became unconscious and naturally could not answer any question."
19. The evidence of P.W.14 shows that the injury No. 2 was sufficient to cause death in the ordinary course of the nature. From his cross-examination it reveals that the injury No. 2 was "sufficient to cause profused bleeding, and thereby there may be reduction of blood volume, causing accurate cercuratory failure. Thus there may cause the loss of oxygen and anoxia. The blood contains in the body can be determined the blood pressure. From the blood pressure it can be determined the patient's position. There is no mention of the blood pressure in my report."
20. It would be pertinent to note that the incident took place at about 07.00 p.m. whilst P.W.14 examined the deceased Ashoke Sarkar at about 08.20 p.m.
21. Then we have the evidence of P.W.15, Prof. Rabindra Basu, Professor and Head of the Department of Forensic and State Medicine and Vice-Principal, Sir Nil Ratan Sircar Medical College & Hospital who deposed that Dr. J.N. Roy had worked under him and he knew his handwriting. He proved the Postmortem report (Ext. 7), which was prepared by Dr. Roy. Prof. Basu further deposed that he also knew Dr. S.K. Sen as he was the colleague of Prof. Basu and be proved his signature (Ext. 7/2).
22. P.W. 18, Dr. Pritikana Biswas was the Medical Officer of the Barasat District Hospital. She could not state as to who wrote the Bed Head Ticket of the deceased Ashoke Sarkar.
23. Alongside the Medical Evidence, there is the evidence of P. W. 16, a clerk in the Office of the Superintendent, R.G. Kar Medical College & Hospital. He had known Dr. S.K. Trivedi, attached to the said Hospital, who has since died. He knew his signature and proved the Injury Report, which was marked as Ext. 8, prepared by Dr. S.K. Trivedi, P.W. 17. Shyamal Roy, General Duty Assistant of Barasat District Hospital had brought the Ward Entry Register and Bed Head Ticket.
24. Now we take up the Police Witnesses. P.W.19 and P.W.20 were the Investigating Officers. P.W.20 partly investigated the case and submitted chargesheet against the present appellants and Kochan and Bhari (both since acquitted) and also one Babuni (since deceased). P.W.19 was attached to the Habra Police Station at the relevant time (3.10.85). On that day at about 08.45 p.m. after he received information of trouble at the Sherpur Kalibari he rushed to the spot after informing the concerned Officer-in-Charge and heard that the deceased Ashoke Sarkar and received serious injury and he had been already shifted to the Hospital. He received the Written Complaint at about 23.55 hours from near the house of the deceased and took up the investigation. He had further deposed that the complainant (P.W. 1) could not be contacted as she was already in the Barasat Hospital to attend her injured brother. The place of occurrence was shown as the residence of P.W.2. He prepared the Sketch Map and on 14.10.85 collected the Dying Declaration and Injury Report from the Habra State General Hospital including the Bed Head Ticket.
25. P.W.12, Sanjit Kumar Chakraborty was attached to the Habra Police Station on the relevant date (3.10.85). He received the Written Complaint (Ext. 1) from P.W. 1 and he registered the case for investigation. In his cross-examination he has submitted that the Written Complaint was handed over to him and the same was not written in his presence. P.W. 1 held the inquest on the body of the deceased Ashoke Sarkar.
26. After we have seen the broad outline of the Prosecution Case we would now go back to the evidence of P.W. 1. who was the author of the FIR. She is the Elder Sister of the deceased Ashoke Sarkar. Her Written Complaint (Ext. 1) was treated as the formal FIR (Ext. 5) by P.W. 12. She lays the foundation of the Prosecution Case through the same. It appears that around 8 O'clock in the evening P.W. 6. who however turned hostile, came to their house and informed that her youngest brother Ashoke Sarkar has been shot by some persons at the Sherpur Kalibari Mela and was hacked with some sharp weapons. Her brother was being taken along with Jessore Road. Immediately after receiving the news she, accompanied by some neighbours, went out to look for her brother. In the meanwhile she informed the Habra Police Station. Thereafter she went to the Habra State General Hospital and saw "a few people carrying my brother into the Hospital". There immediately his treatment was arranged and at about 07.00 p.m. she was told by her brother that at the Sherpur Kalibari Mela a person came and suddenly struck him on his head with some weapon and as he tried to run away P.W. 9 grabbed him and took him to a house next to the Mela and asked him to remain inside. As soon as he left the appellants along with Babuni (since deceased) and few other persons, whose name she could not remember, entered the room with weapons and shot and hacked her brother. Thereafter P.W. 9 again reappeared and headed towards Jessore Road along with his brother and on the way having found P.W. 6 he requested him to inform her another brother not to come to the fair; otherwise he will also be injured.
27. From her FIR it is found that while her brother made the Statement, apart from P.W. 14, her relative (P.W. 10), Bapi Deb (not examined) and many others were present.
28. Let us now refer to her evidence which was more or less told by her in her deposition. She, however, did not speak about the presence of P.W. 10 and others while her brother made the Statement before P.W. 14, the attending physician. From her deposition it is found her Brother was treated at Habra Hospital by the physician and thereafter he was referred to the R.G. Kar Hospital and her Brother again narrated the incident and named the assailants and he ultimately died in the said Hospital on 6.10.85.
29. Once we have seen the evidence of the maker of the FIR (Ext. 5) we would now read the evidence of P.W. 2 and P.W. 3, who both turned hostile before going to the evidence of the purported eye-witnesses.
30. P.W. 2 is the owner of the house where the deceased Ashoke Sarkar took refuge. We find from his evidence that on the date of incident after he reached the station he was informed by the local people that there was trouble in the Sherpur area. Accordingly, he waited in the station for some time and thereafter proceeded to his house and found the locality was absolutely secluded. He was told by the wife of his brother (P.W. 3) that there was some trouble in the mela for which she had closed the door being alone in the house.
31. P.W. 3, the lady of the house, who also turned hostile, heard the bursting of bomb and immediately found some people running and some of them entered into her house. Out of fear she closed the door but, could not identify anyone who entered the house.
32. The eye-witnesses' account is required to be seen very closely. First, we take up the evidence of P.W. 4. He had been to the Sherpur Kalibari Mela. At about 07.00 p.m. on 3.10.85 while he was returning from the said Mela he found the deceased Ashoke Sarkar running shouting 'Bacho Bacho'. He saw P.W. 9 went there and told the appellants, Kochan (since acquitted), Babuni (since deceased) and others "as to what they were doing". The accused persons were chasing deceased Ashoke Sarkar. He tried to see the condition of Ashoke; but the accused persons threatened him for which he had left the place.
33. From his cross-examination we find that A1 was the General Secretary of the College Union owing allegiance to a particular Political Party.
34. P.W. 7 another eye-witness, who went to the Sherpur Kalibari Mela on the relevant date and time of the occurrence found deceased Ashoke Sarkar was being chased by the appellants, Tera Bhai (since acquitted), Kochan (since acquitted) and Babuni (since deceased). At that point of time P.W. 9 took Ashoke, who started crying "Bachao Bachao". He heard sound of crackers and ran away from the place and informed the Elder Sister of Ashoke (P.W. 1) In his cross-examination it is found that being afraid while Ashoke was being chased, he also fled from the place of occurrence. From his cross-examination it further transpires that when he went to the house of P.W. 1 she was not found but the other three sisters were present and he narrated the incident to them.
35. The last eye-witness (P.W. 8) also had been to the Sherpur Kalibari Mela on the date of incident. He saw the deceased Ashoke was crying 'Bachao Bachao' and P.W.9 anyhow took Ashoke to the house of one Khokan Da near a Club, He also found Ashoke running with bleeding injury and later saw that the appellants along with Pochan and Tara Bhai (since acquitted) and Babuni (since deceased) and others were chasing him and entered the house of Khokan Da being armed with deadly weapons. P.W. 9, who was standing at the gate asked to complete the work quickly and soon thereafter he heard sound of bomb and thereafter he left the place out of fear. He went to the house of the deceased where he found the two sisters of Ashoke and narrated the incident to them.
36. From a plain reading of the evidence of the eye-witnesses-P.Ws. 4, 7 and 8 we find there are sufficient contradictions in their evidence which go to the very root of the Prosecution Case. It is found from their evidence that the appellants along with two other accused, who were acquitted and one Babuni (since deceased) were also seen by these eye-witnesses being armed and giving a chase to the deceased Ashoke and they also entered the house where Ashoke had taken shelter and from there sound of bomb explosion was heard. More so from their evidence the role of P.W. 9, who turned hostile, appears to be very mysterious, keeping in mind particularly the evidence of P.W. 8 that P.W. 9 was standing in the gate and asking to complete the work quickly.
37. The eye-witnesses' account does not in any manner, inspire confidence in the mind of the Court in view of such position which we have seen. Their evidence equally implicates the two other accused, who have been acquitted by the learned Trial Court, as they were identified by different witnesses by their nick name, which has been confronted by them; whilst the present appellants were the common factor in all the evidence. This, in our view, would not be a very correct appreciation of the evidence. This, in our view, also would not be a safe conclusion.
38. That apart, we also find although the place of occurrence had been shown to be the house of P.W. 2 and P.W. 3 but, P.W. 8 has spoken about the deceased being given shelter in the house of one Khokan Da near a club. The presence of Khokan Da remains unexplained and all these circumstances gives rise to a dent in their evidence.
39. In all, the very citus of the incident, in our view, remains suspicious. The Seizure List (Ext. 3) pertaining to the seizure of blood soaked bed-sheet, blood soaked bed cover, sample of blood soaked in cotton, cotton etc. from the house of Kalyan Sarkar (P.W. 2) being duly attested by him and one Sourendranath Mukherjee and Kanu Kumar Sarkar (both not examined), goes to show from the admission of the Investigating Officer (P.W. 19), Jnananda Chatterjee that-- "There appears interpolation and overwriting of date and time whereby 3.10.85 was over written as 4.10.85 in a number of places including the signatures...", apart from the fact that nothing more is heard about the contents of the Seizure List (Ext. 3). the overwriting on the date, absence of any seizure of blood and remnants of bomb which in ordinary circumstances could have passed off as remissness on the part of the Investigating Agency, has some bearing in the totality of the circumstances of the present case.
40. Once we have seen the evidence of the eye-witness we would now again come back to the question of the Dying Declaration (Ext. 6).
41. While dealing with the question of the various aspects of the Dying Declaration, noticed by the learned Sessions Judge, we would have to come back to the evidence of P.W. 1 once again.
42. After we have seen that after she (P.W. 1) received information from P.W.6, who turned hostile, with regard to the incident we find the she in course of search, after visiting the police station, reached Habra Hospital where she found her brother Ashoke was being taken inside the hospital in a severely injured condition by some people. She also followed them.
43. We have to read this evidence along with the evidence of P.W. 5. who being accompanied by P.W. 9, took Ashoke in a rickshaw while he was in his full sense and stated that he was assaulted by the appellants and Pochan, Bhaiya (both since acquitted) and Babuni (since deceased). It is his specific evidence that after reaching the Habra Hospital "Ashoke himself went to the Emergency Ward on his foot." and he was treated in the hospital and while P.W.5 was coming out he found P.W. 1 "came up there".
44. Both the evidence of P.W. 1 and P.W. 5 are absolutely contradiction with each other in this context.
45. Leaving aside any other aspect if we see the evidence of P.W. 2 in details, who recorded the Dying Declaration (Ext. 6) of the deceased Ashoke Sarkar at the Habra State General Hospital which has formed the basis of conviction of the appellants, we find that the same is also very hollow piece of evidence in the facts of the present case. The Declaration (Ext. 6) reveals it was noted in a question-answer form. The name of Dula was written separately. The names of Manai, Dola, Bablu and Rana were written in at one stretch while it can be seen very clearly that the name of Dula has been incorporated subsequently and has been positioned in a manner preceding the names of Manai, Dola, Bablu and Rana manifesting that it was written subsequently. That apart, although in the evidence of P.W. 14 that there was an on-duty staff yet neither his name nor his signature finds place in the said Declaration (Ext. 6).
46. Again if we come to the evidence of P.W. 1 we find that Ashoke was taken into the Hospital in a severely injured condition and thereafter inside the hospital in the presence of the physician (P.W. 14) he made the statement which also included the name of deceased Babuni. She stands, contradicted with her earlier version in the FIR (Ext. 5) to the effect that the Dying Declaration (Ext. 6) of her brother was made in the presence of the physician (P.W. 14), one Bapi Deb (not examined) and P.W.10. But, P.W.10 does not speak about any such statement made by the deceased; although he accompanied P.W. 1 and Bapi Deb (not examined) to the Habra Hospital. He, even, does not speak about any statement made by Ashoke at the R.G. Kar Medical College & Hospital where he was shifted from Barasat Hospital referred from the Habra Hospital.
47. In the R.G. Kar Hospital the Injury Report (Ext. 8) was prepared by the attending physician, who had since expired. The said Report (Ext. 8) has been proved by P.W. 16. The said Report in the said circumstance for whatever worth it is, at best reveals that as per the patient and his party's statement, it showed, the patient was assaulted by Dola (Al), Mona (A2), Kochan (since acquitted), Dula (A4), Rana (Al) and others.
48. From an appreciation of the entire evidence on this point, particularly the evidence of the attending physician of Habra Hospital (P.W. 14), who treated the injured Ashoke Sarkar at about 08.20 p.m., i.e. after more of less one-and-half hours from the time he received the injuries, specifically stated that at first the patient was conscious but gradually he became unconscious. We have seen from his cross-examination the nature and gravity of the injury suffered by the deceased and as to whether it was at all possible for him to make such a statement in such a condition; more so, where there is no note of his state of health in the Report and as there is sort of an interpolation where the name of Dula has been put in, we feel it unsafe to place any credence to the said Dying Declaration (Ext. 6). In our view, it would be unsafe to accept the same as creditworthy.
49. As such, as we have found the evidence of the eye-witnesses including the surrounding evidence and the absence of seizure of any blood from the place of occurrence, although it has been found the deceased Ashoke was expected to profusedly bleed and the contradictions in the evidence of the eyewitnesses, we feel that after considering the totality of the evidence and other circumstances on record it would not be proper to affirm the conviction.
50. Accordingly, we set aside the same and allow the appeal. Appellants are discharged from their Bail Bonds. Appeal allowed.
Dipankar Datta, J.
51. I agree.