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1997 DIGILAW 34 (GAU)

Gopal Chowdhury v. State of Assam

1997-02-28

B.N.SINGH NEELAM

body1997
This criminal appeal is preferred under section 374 CrPC against the judgment of conviction and sentence passed by the Additional Sessions Judge, Kamrup at Guwahati on 26.11.91 in Sessions Case No.87 (K-G) of 1988 by virtue of which the sole accused/appellant, viz Shri Gopal Chowdhury, is convicted under section 304 Part III PG and sentenced to undergo RI for five years and to pay a fine of Rs.3,000/- (Rs. three thousand) only, in default to undergo RI for further six months. 2. Heard Mr. SS Sharma, learned counsel appearing for the sole accused/appellant and Mrs. K. Deka, learned Public Prosecutor representing the State of Assam figuring here as respondent. 3. All the points so taken as good grounds in this memo of appeal are pressed into service and it is emphatically argued that in the background of the facts and circumstances of the instant case, the judgment of conviction is bad in law and hence this criminal appeal. By elaborating the arguments, it is further pointed out that the learned trial Court has rather drawn adverse inference andthe learned trial Court even erred in relying upon the evidence of PW 2, Pradip Dutta, who, according to the prosecution, was the only eye witness to the alleged occurrence. It is pointed out that on no account, the evidence of PW 2 can be said to be trustworthy because of certain major contradictions cropping up and that being the position, in the background of the facts and circumstances of the case, the accused/appellant was and is entitled for acquittal. It is further submitted that out of the six prosecution witnesses examined in course of trial, PW 1 is the first informant who is a heresay witness, PW 2 is Pradip Dutta who claims to have seen the occurrence but his statement, as submitted, is fully of contradictions. PW 3 is the Medical Expert conducting the postmortem examination over the dead body of Manmohan Dutta on 27.7.85, when as per the prosecution case, for the alleged occurrence taken place on 13.7.85 after about a week, Manmohan Dutta (since deceased) succumbed to his injuries and breathed his last when he was admitted in the hospital for treatment. By referring to the to the evidence of PW 3. Mr. By referring to the to the evidence of PW 3. Mr. Sharma, the learned counsel for the accused/appellant also submits that the sequence of events taking place as coming from the mouth of PW 2 with that of the injuries said to have been sustained by Manmohan Dutta (since deceased) do not find full corroboration with that of the injuries so found on the person of the deceased when the post mortem examination was so conducted. As regards PW 4, it is submitted that he happened to be a nearby shop keeper who can well be said to be a formal witness. PWs 5 and 6 are the Police personnel, one of them being the Investigating Officer. It is also submitted that by going through their evidence, in no way anything can be taken out with regard to the occurrence particularly the accused/appellant assaulting Manmohan Dutta. Their evidence only reveal with regard to the inquest report prepared, investigation completed, charge sheet submitted and examination of some of the witnessess under section 161 CrPC. In that background, when, as submitted, the prosecution had failed to substantiate the charges levelled against the accused/appellant, the learned Court below thus would not have convicted him under section 304 Part II, IPC. In this connection, attention is also drawn with regard to non examination of some of the material prosecution witnesses. It is also pointed out that the unnatural conduct of the PW 2 would have well been kept in the mind of the trial Court while admitting him to be a trustworthy witness and furthermore, when the charge was so framed under section 302 read with section 34 IPC and out of two of the accused facing trial, one got acquitted in such circumstance, without altering the charge under section 302 IPC or 304 Part I or Part II IPC, the learned Court below has erred as to convict the accused/appellant under section 304 Part II IPC when at the time of framing of the charge against the two accused persons, the core of the charge was commission of an offence in furtherance of the common intention and that common intention part being not proved relating to the meeting of minds prior to the occurrence, in that case, great prejudice is caused to the present accused/appellant being convicted without altering the charge dropping the same to be read with section 34 IPC. In support of his this contention, Mr. Sharma, the learned counsel for the appellant, has referred to a case reported in 1994 CrI LJ 919, State of West Bengal vs. Vindu Lachmandas Sakhrani alias Deru. It is also pointed out that while dealing with the matter, the Supreme Court has referred to reported cases in AIR 1956 SC 51 , Prabhu Babaji Norley vs. State of Bombay and AIR 1963 SC 1413 , Krishna Govind Patil vs. State of Maharashtra. The learend counsel for the appellant has also referred to another reported case in (1993) 3 SCC 282 , Anil Phukan vs. State of Assam on the point that while disposing of the matter-banking on the evidence of a solitary eye witness, the Court has to take due precaution and has also to search relating to any other independent corroborating evidence supporting the prosecution story In the instant case, it is submitted that no such independent corroborating evidence is coming from the mouth of any of the witnesses on the point of occurrence. In all fairness, lastly, Mr. SS Sharma, learned counsel for the appellant has submitted that the main question for consideration is not that whether Manmohan Dutta met a natural death or was done to death. He even admits that by looking into the injuries on his person, it may well be said that because of the injuries sustained, he breathed his last. But the only point for vital consideration is as to what extent the prosecution succeeded in course of trial as to establish upto the hilt with regard to the participation of the sole accused/appellant in the said offence ? And on this point again, with all emphasis, rt is submitted that on the grounds mentioned above and others so taken in detail in the memo of appeal, particularly, its ground portion, safely it can be said that the prosecution has thus not succeeded to bring home the charge so levelled against the accused/appellant convicting him and for other disbeleiving the story, even their story of the act being committed in furtherance of their common intention and thus the sole accused/appellant deserves acquittal. 4. Mrs. K. Deka, the learned PP, on the otherhand, submits that there was nothing wrong in the impugned judgment of conviction. 4. Mrs. K. Deka, the learned PP, on the otherhand, submits that there was nothing wrong in the impugned judgment of conviction. The learned Court below has rightly relied upon the evidence of PW 2 who happens to be the eye witness who has supported the prosecution case while figuring as PW 2 and has also well stood the test of cross examination. By refering to the evidence of PW 3, the Medical Expert, Mrs. K. Deka the learned PP, further submits that his evidence finds full support and corroboration with that of the prosecution story so advanced. It is also submitted that there is evidence to show that this accused/appellant after assaulting PW 2 and his father, Manmohan Dutta (since deceased) ran to his house which was nearby, brought a knife and also assaulted Manmohan Dutta (since deceased) with the knife and such injury was found also by the Medical Expert with other injuries as detailed in the postmortem report With regard to the some of the reported cases as cited, -Mrs. K. Deka, learned PP representing the State, further submits that in the instant case, because of the occular evidence of PW 2, the learned Court below was fully within its jurisdiction as to convict the sole accused/appellant under section 304 Part IIIPC taking a lenient view of the matter that the occurrence took place because of certain provocation as detailed in the FIR with regard to some altercations going on between the parties prior to the assault. That being the position, it is submitted that the judgment of conviction passed without altering the charge as prayed for can well be said to be justified. As regards the evidence of PW 2, it is submitted 1 that by taking his evidence as a whole as that with the contents of the FIR which was so lodged at the instance of this witness because of this witness giving details of information of the occurrence taking place to his brother, Santosh Dutta, it can well be said that the said witness was trustworthy and there are good reported cases on the matter that on the trustworthy evidence of the sole material witness, conviction can well lie. On this grounds hence the prayer is that there is no merit in this memo of appeal and the same be dismissed. 5. On this grounds hence the prayer is that there is no merit in this memo of appeal and the same be dismissed. 5. After hearing both sides' lawyers, I have carefully gone through the evidence available on record, also the reported cases so cited are taken into consideration. The reasons so assigned for convicting the sole accused/appellant by the learned trial Court in the impugned judgment is also looked into. In the instant case, six prosecution witnesses are examined and no defence witness is examined. Two of the persons stood charged under section 302 read with section 34 IPC out of whom one was acquitted and another, i.e., this accused/appellant was convicted and sentenced as detailed above. Admittedly, there was no alteration or addition of the charge in the course of trial. Now as regards the evidence so adduced coming from the mouth of the prosecution witnesses, PW 1 is a hearsay witness who is also the first informant of this case. According to him, when after getting information, he arrived at the hospital where his father, Manmohan Dutta (since deceased) was lying, the details of the event was narrated to him by PW 2. PW 3 is the Medical Officer. He has detailed the injuries found on the person of the deceased, has assigned the cause of death and the post mortem examination was conducted by him on 27.7.85. As rightly submitted by Mr. SS Sharma, learned counsel for the appellant, the matter with regard to his unnatural death is not so being challenged. Mr. Sharma has submitted that Manmohan Dutta might have been murdered but the conviction of this accused/ appellant will lie only when the prosecution could show with regard to the concrete and definite evidence showing the involvement of this accused/appellant in the said occurrence. That being the position, the evidence of PW 3 was or is important only to the extent of injuries and the cause of death of the deceased which is not under challenge. PW 4 is a formal witness. Nothing substantive comes out from the evidence of PWs 5 and 6 who are Police personnel. That being the position, the evidence of PW 3 was or is important only to the extent of injuries and the cause of death of the deceased which is not under challenge. PW 4 is a formal witness. Nothing substantive comes out from the evidence of PWs 5 and 6 who are Police personnel. That being the position, whether the judgment of conviction and sentence so passed is fit to be set aside or not is solely based upon the re-evaluation of the evidence of PW 2 with that of the other grounds so taken by the learned counsel for the . appellant for setting aside the judgment of conviction. 6. Now, coming to the evidence of PW 2 direct, true, it is that even the solitary testimony of a material prosecution witness can lead to conviction in a case, but it is to be looked into with great caution as to whether the said solitary witness was so trustworthy to be relied upon or there was any dent in his evidence. In the present, first of all, it is found that for the occurrence taking place on 13.7.85 at 7.30 PM, the matter is reported on the next date on 14.7.85 at 11 AM. The explanation so given for this delay in reporting, though as submitted, the distance of the place of occurrence from mat of the Police Station being hardly one kilometre, that members of the prosecution side got busy in giving treatment to Manmohan Dutta, taking him to the hospital and so the delay. This explanation of delay so coming from the prosecution side also does not seem to be so satisfactory. Furthermore when PW 2, Pradip Dutta, was the eye witness who also happens to be one of the sons of the deceased, in normal course, it was expected of Pradip Dutta, who was very much available, to lodge the FIR than to get the FIR lodged by Santosh Dutta, who can well be said to be a hearsay witness. Furthermore when PW 2, Pradip Dutta, was the eye witness who also happens to be one of the sons of the deceased, in normal course, it was expected of Pradip Dutta, who was very much available, to lodge the FIR than to get the FIR lodged by Santosh Dutta, who can well be said to be a hearsay witness. The conduct of Pradip Dutta, after going through the evidence and taking into consideration the sequence of events as narrated, also seem to be doubtful on two scores firstly, in the normal course, it was expected of Pradip Dutta as to make hue and cry after managing to escape so as to save his father from further assault than to rush to his house and to go to the house of his sister along with his mother. The second unnatural conduct of PW 2 is that when according to him there was some time given to this witness and his father Manmohan Dutta when this accused/appellant is said to have gone to his nearby house as to bring knife, in that case in normal course, it was expected of him as to attempt to fleeaway from the alleged place of occurrence rather waiting and standing at the said place of occurrence welcoming the accused/appellant as to come equipped with a knife. Nowhere it has been said by PW 2 that when the accused/appellant had gone as to bring the knife, they were under restraint and kept watched by the other accused persons. It also comes in light that in the instant case, some of the material prosecution witnesses are not examined for reasons best known to the prosecution side and they are, firstly, Sita Debi, the wife of Subhash Chowdhury, who according to the procesuction case, was very much present at the spot atleast in the first part of the incident. She could have been the best independent witness to depose in favour of the prosecution but she has not been brought as a prosecution witness in course of trial. The prosecution would have also examined Subhash Choudhury, owner of the said shop, and also one Bhola Dey, the brother-in-law of PWs 1 and 2, because, as coming from the mouth of Pradip Dutta, PW 2, he along with his mother went to his sister and first of all narrated the whole story to his sister's husband, i.e., Bhola Dey. The prosecution would have also examined Subhash Choudhury, owner of the said shop, and also one Bhola Dey, the brother-in-law of PWs 1 and 2, because, as coming from the mouth of Pradip Dutta, PW 2, he along with his mother went to his sister and first of all narrated the whole story to his sister's husband, i.e., Bhola Dey. This man would have been the best person as to come as PW 2 in course of trial and to support this part of the prosecution story which has also not been done. By going through the statement of the accused/appellant recorded under section 313 CrPC, surprisingly enough, the question so put to him was of his intentionally causing the death of one Hem Chandra Dutta on the alleged date time and place of occurrence. The name of the father of PWs 1 and 2, who is deceased, is Manmohan Dutta. Nowhere in the evidence it has come in light that Manmohan Dutta (since deceased) had any other name or was called by the name of Hem Chandra Dutta. This discrepancy is also vital which can well be said to have caused prejudice to the accused/appellant when his statement was recorded under section 313 CrPC. In this background, I feel afraid as whether in such a circumstances, the solitary evidence of PW 2 could have been trustworthy to be relied upon so as to base the judgment of conviction on the solitary testimony of this witness. In my considered opinion, the solitary testimony of PW 2 in the background of the facts and circumstances of the case can, on no account, be said to be wholly trustworthy and that being the position, the learned Court below instead convicting the accused/ appellant, viz, Gopal Choudhury would have acquitted him. Further more, I also hold the view that in the background of the reported case in 1994 Crl LJ 919 (supra), because of separate charge not being framed when the story with regard to the two of the accused committing the offence in furtherance of the common intention failed, that gives also a fatal blow to the prosecution case making the judgment of conviction liable to be set aside. From the mouth of the prosecution witness PW 2, one more circumstance was so shown that the accused person had also a caused burn injury on the person of the deceased. From the mouth of the prosecution witness PW 2, one more circumstance was so shown that the accused person had also a caused burn injury on the person of the deceased. This part of the prosecution story in no way finds support by going through the postmortem report. Further more, PW 2 in his cross examination is very specific in saying that he did not utter to his mother with regard to the accused/appellant in any way assaulting or bringing the knife to assault Manmohan Dutta. This contradiction is also vital. On this ground and on the grounds detailed above, I find it to be a fit case in which the judgment of conviction and sentence so passed by the learned trial Court requires interference and is fit to be set aside. Taking that view, the impugned judgment of conviction and sentence so passed which is under challenge is hereby set aside. This criminal appeal is accordingly allowed. The sole accused/appellant is discharged from the liability of his bail bonds and is hereby set at liberty.