Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 693 (CAL)

Basudeb Sharma v. State of W. B.

2001-10-19

NARAYAN CHANDRA SIL, NURE ALAM CHOWDHURY

body2001
JUDGMENT N.C. Sil, J. 1. This appeal was directed against the judgment dated 28.1.2000 and the order of conviction dated 29.1.2000 passed by Sri S. N. Ghosh, the learned Additional Sessions Judge, First Court, Hooghly in connection with Sessions Trial Case No. 92 of 1991 arising out of Chanditala Police Station Case No. 10 dated 17.5.1986. The learned trial Judge was pleased to find the accused appellant Basudeb Sharma guilty for committing offence under section 302 I.P.C. and the other remaining five accused appellants for committing offence under section 302 read with section 34 I.P.C. and sentence all of them to suffer rigorous imprisonment for life and also to pay a fine of Rs. 1,000/- and in default of payment of such fine a further rigorous imprisonment for a term of one month each. 2. It is stated in the memo of appeal that the learned trial Judge committed miscarriage of justice by convicting the appellants on the basis of the materials brought on record. It is also pointed out that the medical report does not support the prosecution case and the occular evidence of the witnesses. It is also stated that there are serious contradictions in the evidence of the witnesses. It is further stated that immediately after the occurrence one Dilip Kumar Pakhira had virtually informed the police about the incident and in pursuance thereof the police went to the place of occurrence, but neither the said Dilip Kumar Pakhira had been examined by the prosecution nor his statement allegedly recorded and reduced to the G.D. Entry had been produced before the Court. It is also stated that the F.I.R. prepared subsequently on the basis of the statement of the P.W.1 after the G.D. lodged by Dilip Kumar Pakhira is hit by the provisions of section 162 of the Code of Criminal Procedure and it casts a grave shadow of doubt over the prosecution case itself which again supports the defence case that the incident did not take at the place, time and the manner as alleged by the prosecution and also that the case is the outcome of false accusation out of political rivalry. It is further stated that the examination of the accused persons by the learned trial Judge under section 313 Cr.P.C. was also devoid of the very principle of the object of offering an opportunity to an accused to explain the circumstances appearing from the evidence against him. 3. It appears from the record that the learned trial Judge was pleased to frame charge against the accused persons under section 302 read with section 34 I.P.C. when they all pleaded not guilty and claimed to be tried. 4. The prosecution case in brief is that on 16th May, 1986 the victim Narendra Nath Patra went out of his house at about 7 p.m. in order to purchase bidi from the market place which was at a very short distance of some yards from his house and immediately thereafter one Jiten Das, the business partner of Narendra Nath came to the house of the victim who after hearing that Narendra Nath had left for market to purchase bidi was also going towards the market and at that time on hearing the cry of the victim both Jiten and wife of the victim came out on the road separately and found the victim in serious injured condition who was coming towards his house pressing his neck. In such condition the victim Narendra Nath stated the names of his assailants as Raj Kumar, Uttam, Robin, Bablu, Basu and Mukta. After a short while the victim succumbed to his injuries and expired on the road. As many as 20 witnesses had been produced by the prosecution before the learned trial Judge and out of them the PWs. 4, 5, 7, 10, 12 and 13 were tendered by the prosecution. Some of those witnesses were cross-examined by the defence. 5. On scrutiny it appears that the P.W.s. 8, 11 and 14 are the eye witnesses of the occurrence. Amongst the other witnesses the P.W.s. 1, 2 and 9 appearing at the place of occurrence after the assault was made and heard the names of the assailants from the victim Narendra Nath Patra himself. 6. The learned Advocate Mr. 5. On scrutiny it appears that the P.W.s. 8, 11 and 14 are the eye witnesses of the occurrence. Amongst the other witnesses the P.W.s. 1, 2 and 9 appearing at the place of occurrence after the assault was made and heard the names of the assailants from the victim Narendra Nath Patra himself. 6. The learned Advocate Mr. Himangshu De appearing for the appellants has argued before us that the charge framed by the learned trial Judge was defective and the G.D. lodged by Dilip Kumar Pakhira is earlier from the point of time and as such the same should have been considered as the F.I.R. in the instant case, but the same had been suppressed and subsequently the F.I.R. was prepared from the statement of the wife of victim which is nothing short of a matter after thought. It is also pointed out by the learned Advocate for the appellant that the said Dilip Kumar Pakhira has not been examined by the prosecution in the instant case. The learned Advocate for the appellants has also drawn our attention to the evidence of the P.W. 10 who is the wife of the brother of the deceased and she did not support the prosecution case inasmuch as it is in her evidence that she heard from the P.W.1, the wife of the victim that she did not know as to who killed her husband. It is also pointed out by the learned Advocate for the appellants that the evidence of the witnesses suggests that the victim was not in a position to talk after the occurrence. The learned advocate for the appellants has cited a number of case laws which we shall discuss later on. 7. Mr. S. Moitra, the learned Additional P.P. has argued on the other hand that the evidence of the doctor who is the P.W. 19 in the instant case suggests that the wind pipe of the victim was intact and as such he was very much in a position to talk. The learned Additional P.P. then submitted before us that the defect of the charge can be cured with the provisions of section 464 Cr.P.C. The learned Additional P.P. has also referred to some case laws which we shall discuss at the appropriate point of him. 8. The learned Additional P.P. then submitted before us that the defect of the charge can be cured with the provisions of section 464 Cr.P.C. The learned Additional P.P. has also referred to some case laws which we shall discuss at the appropriate point of him. 8. It appears that the P.W. 8 used to work in a ration shop in the market which is at a distance about 15/20 cubits from the Sani Temple. He also used to stay in the said ration shop at night. He stated in his examination-in-chief: "At about 7 p.m. I saw these accused persons loitering near the Sani Temple. Thereafter I entered into the ration shop. Since I was feeling uncomfort in that ration shop, I came out. I saw Basu, Robin and Rajkumar holding Naren near Sani Temple when he was coming from the market. Initially I did not give any importancy (sic.) to the act of the accused persons. I saw Basu holding the bulk of Naren's hair and cutting the lateral portion of his right neck by a sharp cutting weapon. The other accused persons were also present at that time." 9. He had also stated that thereafter Naren started to move pressing his injury and saying that Basu murdered him and at that time wife of Naren came up there and immediately thereafter Jiten and other local people appeared there. The other eye witness is the P.W.11. He is Muktaram Das. It may be mentioned here that there is another accused appellant of similar name but the two persons are different. However, this P.W. 11 stated in his examination-in-chief: "These accused persons surrounded Naren Patra and assaulted him by a razor. I could identify accused Muktaram, Basu and Robin. I could not identify the other accused persons. Of course all of them were present at the material time of the incident. Naren Babu cried saying 'Basu Amake Mere Fello'. On hearing his shouting his wife came and caught hold of him. Naren Babu lay down at a distance of 10/15 cubits away from his house." 10. Naba Kumar Sanki is the P.W.14. He also claims to be an eye witness of the occurrence. At the material point of time he was taking tea at the crossing near Sani Temple and at that time he saw all the accused persons surrounded Naren. Naren Babu lay down at a distance of 10/15 cubits away from his house." 10. Naba Kumar Sanki is the P.W.14. He also claims to be an eye witness of the occurrence. At the material point of time he was taking tea at the crossing near Sani Temple and at that time he saw all the accused persons surrounded Naren. He further stated in his examination-in-chief: "All of a sudden I saw Naren was crying 'Banchao, Banchao'. After some time I saw accused - Basudeb Sharma assaulting Naren by a razor. Naren sustained injury at the right lateral part of his neck." All these three witnesses stood the test of cross-examination without being shaken. Some of the parts of their evidence had been confronted in their cross-examination and after having taken confirmation from the I.O. it appears that all the three witnesses stood by their evidence in examination-in-chief substantially. 11. Mira Rani Patra, the widow of the victim Naren is the P.W.1, she stated in her evidence that on being attracted by the cry of her husband she went to the spot which was about 100 ft. away from her house. There she found her husband coming after pressing his neck. P.W.1 further stated, "Being asked by me, my husband told me that accused Rajkumar, Uttam, Robin, Bablu, Basu and Mukta Das cut his lateral right portion of neck by a razor," P.W.2 is Jiten Das. He stated in his evidence that on hearing from the wife of Naren that Naren went to the market to purchase bidi he also started proceeding there and at that time he heard the cry of Naren. It further appears from his evidence that Naren's wife also came up there on running. The P.W.2 further stated that Naren was coming by pressing the lateral right portion of his neck. The P.W.2 further stated, "Myself and Naren's wife caught hold of Naren and , being asked by us, Naren stated that Muktaram Das, Bablu Modak, Basudeb Sharma, Robin Das, Rajkumar Das and Uttam Das assaulted him by a razor." Abani Das is P.W. 9. At the material point of time he was sitting in a building material shop when he heard a hue and cry. Immediately he came out and heard Naren saying that he was killed by Basu, Raju and others. At the material point of time he was sitting in a building material shop when he heard a hue and cry. Immediately he came out and heard Naren saying that he was killed by Basu, Raju and others. He further stated that the wife of Naren and Jiten Das also appeared there and then Naren told that Basu, Raju, Robin, Muktaram and two others had killed him. In his cross-examination the P.W. 9 admitted that there are civil and criminal litigations instituted at the instance of the mother of accused Muktaram are pending against him. 12. From the manner of describing the incident and the names of the assailants heard from the victim by the P.W.s, like 1, 2 and 9 who appeared there immediately after the occurrence there appears some exaggerations. Now after the evidence of the eye witnesses as stated and quoted above is taken into consideration there appears nothing as regards the overt act by the other accused persons excepting of course of the accused Basu i.e. the accused-appellant Basudeb Sharma. In fact, the name of Basudeb Sharma as Basu appears in the evidence of all the witnesses to have used the offending weapon which had caused the death of the victim Naren. Further, the evidence of the witnesses only shows that the accused persons were loitering there. P.W.8 stated that three of the accused appellants namely Basu, Robin and Raju caught hold of Naren and Basu did the main operation. P.W. 11 claims to have found that all the accused persons surrounded the victim but he did not name all the accused persons excepting Muktaram Das, Basu and Robin. It is also in his evidence that he heard the victim crying and saying that he was murdered by Basu. In fact, it appears from the evidence of the other witnesses also that the victim had specifically named Basu as his assailant and the incorporation of the names of other accused-appellants from the mouth of the victim does not inspire our confidence. In fact, it appears from the evidence of the other witnesses also that the victim had specifically named Basu as his assailant and the incorporation of the names of other accused-appellants from the mouth of the victim does not inspire our confidence. The evidence of the P.W. 10 which has been drawn to our notice by the learned Advocate for the appellants that she heard from the P.W.1 that the P.W.1 did not know as to who had killed her husband does not find any support from any quarters and as such the said evidence has no impact on the prosecution case particularly in view of the overwhelming evidence of the eye witnesses. Besides, the prosecution case is conspicuously silent as regards the pre-concerted activity of the accused-appellants for committing murder of the victim Naren. 13. In view of the defect of charge, inasmuch as time was not mentioned, as pointed out by the learned Advocate for the appellants, it appears that the witnesses had mentioned the time of occurrence and the same does not appear to have been challenged by the defence in cross-examination of the witnesses. Thus such defect has not prejudiced the defence in any way. 14. The time gap between the G.D. entry and the F.I.R. is negligible and in view of the trauma of the wife of the victim for the murder of her husband and his death almost on the lap of his wife, there appears no scope to conceive that she was tutored to lodge the F.I.R. Moreover, there is no cross-examination of the P.W.1 who lodged the F.I.R. that she was tutored. Besides the most articulate evidence of the witnesses does not suggest anything that the F.I.R. was a matter of after thought. 15. As regards discrepancies of the weapon used in commission of the offence it is a pointer that the witnesses deposed before the Court after a long lapse of about 14 years. Besides, P.W.1 stated in her F.I.R. that some sharp weapon was used and after 14 years when she deposed before the learned trial Judge she stated that her husband was assaulted by razor and the doctor, the P.W. 19 who made the post mortem examination of the dead-body, opined that the injuries might be caused by heavy sharp cutting weapon. Besides, P.W.1 stated in her F.I.R. that some sharp weapon was used and after 14 years when she deposed before the learned trial Judge she stated that her husband was assaulted by razor and the doctor, the P.W. 19 who made the post mortem examination of the dead-body, opined that the injuries might be caused by heavy sharp cutting weapon. At least one of the eye witnesses, the P.W. 8 stated that Basu holding the bulk of Naren's hair cut the lateral portion of Naren's right neck by a sharp cutting weapon. And there is no cross-examination of the P.W. 8 on the nature of the weapon used in particular. Furthermore, the depth of the injury depends on the force used with the weapon by the assailant at the time of commission of offence. There is again no cross-examination of the P.W. 19 on the edge of the injuries. Of course the P.W. 19 stated in his cross-examination that the razor is not a heavy sharp cutting weapon. In fact, there is no observation either in the report of the P.W.19 or in his evidence as to what were the edges of the injuries. Thus we do not think it fit that for such discrepancies as regards the nature of the weapon used the prosecution case should fail. 16. It has been challenged seriously by the defence that the victim Naren had any capacity to tell the names of his assailants. Almost all the witnesses have stated that Naren gave the names of his assailants. Here the evidence of the P.W. 19 is very important. The P.W. 19 also appears to have been cross-examined extensively on this point. But the P.W. 19 is specific in his evidence in this regard and he stated: "I have mentioned in the P.M. report (that) hyoid bone and thyroid cartilage were intact. It indicates that the larynx was not affected, within the larynx lies the vocal cord. Sound is produced when wind coming from chest and then passing through trachea and striking vocal cord and creates vibration and produce sound". This suggests that the vocal cord of the deceased was not affected by the injuries and as such the prosecution case that the victim narrated the names of his assailants immediately after the occurrence to others stands in conformity with the medical evidence. 17. This suggests that the vocal cord of the deceased was not affected by the injuries and as such the prosecution case that the victim narrated the names of his assailants immediately after the occurrence to others stands in conformity with the medical evidence. 17. The field of cross-examination is not to make a fan-fare and the defence cannot roam about as it likes. It is the cardinal principle of cross-examination that defence must see the beacon on hem to stop. Sometimes, the reckless and irresponsible cross-examination invite liabilities upon the defence to explain the same. And, in fact, the same thing has happened in the instant case. It appears that in most of the cases the suggestions have been given to the P.W.s. that they belong to the Congress Party and the same has prompted them to depose falsely against the accused persons, but to our utter dismay there appears no evidence adduced by the defence and not even any suggestion put to the P.Ws. as to which political party the accused persons belong to. A suggestion was put to the P.W. 6 to the effect that the accused persons 'were all present with the co-villagers beside the deadbody of Naren which was, of course, denied by the witness. The suggestion is indicative enough as regards as the presence of the accused persons at the place where Naren died and the said place is at a distance of about 10/15 cubits from the place where he was injured. Then a suggestion was put to the P.W.11 to the effect that Naren was assaulted by somebody else at the crossing of the lane and bus route. This is also suggestive enough that the occurrence took place at such site as claimed by the prosecution. This suggestion is also indicative enough that the occurrence is very much known to the accused persons. In the background of such suggestion the question number 6 put to the accused/appellant Basudeb Sharma that the P.W.1 stated that her husband told the names of the accused persons including his name as his assailant and the reply of the accused/appellant Basudeb Sharma, "Do not know" appear to be totally inconsistent. As the matter of examination of the accused under section 313 Cr.P.C. is not a matter of mere formality, so also the suggestions put to the prosecution witnesses are not the matter of formalities. 18. As the matter of examination of the accused under section 313 Cr.P.C. is not a matter of mere formality, so also the suggestions put to the prosecution witnesses are not the matter of formalities. 18. The Learned Advocate for the appellants has referred to the ratio decided in the case of Ram Narain vs. State of Punjab, AIR 1975 SC 1727 , in which it was held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballastic expert, the same amounts to a fundamental defect of the prosecution case unless the same is reasonably explained. The learned Advocate for the appellants has referred to the ratio decided in the case of Amar Singh vs. State of Punjab, AIR 1987 SC 826 , in which it was held that where there is inconsistency between the testimony of sole eye witness and the medical evidence as regards the number of injuries, the accused is entitled to get the benefit of doubts. The learned Advocate for the appellants has then referred to the decision of the Supreme Court in the case of Purshottam vs. State of M.P., AIR 1980 SC 1873 , wherein it was held that medical testimony is to be preferred where there are contradictions between the medical testimony and the evidence of the eye witness regarding the fatal injury of the cJeceased. None of these case laws referred to by the learned Advocates for the appellants appears to have any application to the instant case in view of what has been discussed by us in the foregoing lines. It has already been established that there is no such substantial conflict between the evidence of the P.Ws. and the evidence of the medical expert. The learned Advocate for the appellants has also referred to a number of case laws on the existence an application of common intention as described under section 34 of the Indian Penal Code. We prefer to eschew ourselves from discussing those case laws, for, we have already seen that there was no such common intention to commit murder of the victim in the instant case. 19. We prefer to eschew ourselves from discussing those case laws, for, we have already seen that there was no such common intention to commit murder of the victim in the instant case. 19. The learned Additional P.P. has referred to the decision made in the case of Rammi vs. State of M.P., AIR 1999 SC 3544 , in which it was, inter alia, held that: "When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between two statements of the same witness) is an unrealistic approach for judicial scrutiny." Our discussions in the foregoing lines are not inconsistent at all with the ratio decided in the case of Rammi (supra) and perhaps we have taken a very realistic approach. 20. Another question has been raised by the learned Advocate for the appellants as regards the existence of any light at the place of occurrence. The occurrence took place in the month of May and it was about 7 p.m. and that too in a market place. It appears from the evidence of the P.W. 8 in his cross-examination that the occurrence took place at a distance of 3 cubits from the Sani Temple and the entrance of the lane from the said Temple is visible even at night. No suggestion was put to the P.W. 8 that there was no light in the market place-or the place of occurrence was not visible at night from the place where the P.W. 8 was there. The other eye witness, the P.W.11 goes unchallenged in his cross-examination as regards either of the existence of light or non-visibility of the occurrence by him at such hours of the evening. Similar is the position of the other eye witness, the P.W. 14. We have also taken into consideration that the occurrence took place on 16.5.1986. The other eye witness, the P.W.11 goes unchallenged in his cross-examination as regards either of the existence of light or non-visibility of the occurrence by him at such hours of the evening. Similar is the position of the other eye witness, the P.W. 14. We have also taken into consideration that the occurrence took place on 16.5.1986. In a tropical country like ours it is not pitch dark at 7 p.m. in the month of May. All this has frustrated the claim of the appellants in argument that it was not possible for the eye witnesses to see the occurrence. 21. The appeal is thus allowed in part on contest. The judgment of conviction and sentence passed by the learned Additional Sessions Judge in respect of the appellant Basudeb Sharma for committing offence under section 302 I.P.C. is hereby affirmed but the separate sentence and punishment of the accused/appellants including that of Basudeb Sharma for the offence under section 302 read with section 34 I.P.C. are hereby set aside and thus the other 5 accused/appellants namely 1. Biswanath Modak, @ Bablu 2. Muktaram Das, 3. Robin Tanti, 4. Uttam Tanti, and 5. Raj Kumar Tanti are directed to be set at liberty at once. 22. A copy of this judgment along with the L.C.R. be sent back to the learned lower court forthwith. I agree. Appeal allowed in part. Conviction and sentence of appellant No.1 under section 302 I.P.C. affirmed. Conviction and sentence of other appellants under section 302/34 I.P.C. set aside and appellants 2 to 6 acquitted.