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2004 DIGILAW 494 (CAL)

MADHUSUDAN DAS v. SHANTANU KUNDU

2004-07-23

RAJENDRA NATH SINHA

body2004
RAJENDRA NATH SINHA, J. ( 1 ) THIS is to consider an application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the de facto-complainant being aggrieved by the judgment and order dated 29th March, 2000 pronounced by the learned Additional District and Sessions Judge, Second court, North 24-Parganas at Barasat in Sessions Case No. 2 (5) of 1997 sessions Trial No. 3 (9) of 1996 arising out of Basirhat P. S. Case No. 141 dated 7. 9. 1984 under Section 304/32 of the I. P. C. and Sections 25 (1b) (a)/ 27 of the Arms Act wherein the learned Additional Sessions Judge acquitted the accused under Section 235 of the Criminal Procedure Code. ( 2 ) THE grounds as it appears on perusal of the petition in itself may be stated as follows : -. A) that the investigation in itself was not only vitiated but also improper and contrary to the specific direction of the Writ Court to conduct investigation by the Criminal Investigating Department West bengal as per order dated 23rd December, 1994 of this Court. B) that the learned Court below failed to appreciate the evidence on record in its proper perspective though the evidences on record in respect of the presence of the accused at the place of occurence, use of pipe gun, recovery of the same thereof at the instance of the statement of the accused, report of the expert's in respect thereof were not taken into account. C) besides the above the learned Court in exercise of his jurisdiction failed to appreciate the confessional statement of the accused and other material evidences on record within the four corners of the record. D) that the impugned order of acquittal dated 29th March, 2000 is otherwise bad-in-law and not sustainable and it be not allowed to continue. ( 3 ) IN course of this revisional application learned Counsel Mr. Moitra has urged that in course of trial 23 persecution witnesses were examined but the Court without appreciating the same in respect of the evidences on record failed to take note of it in its proper perspective causing miscarriage of justice, hence the same has been filed. ( 4 ) AT the outset Mr. Moitra has urged that in course of trial 23 persecution witnesses were examined but the Court without appreciating the same in respect of the evidences on record failed to take note of it in its proper perspective causing miscarriage of justice, hence the same has been filed. ( 4 ) AT the outset Mr. Moitra has drawn the attention of the Court that initially the de facto-complainant elder brother of the deceased (Tapas Alias boby) was suspicious about the investigating machinery. The de-facto-complainant modhusudan Das who set the machinery of law in motion preferred a Writ Petition Civil Order No. 17467 (W) of 1994 with a prayer for investigation of the aforesaid police case by Central Bureau of Investigation on the aforesaid date i. e. 23rd December, 1994. This Court was pleased to direct investigation of the aforesaid case by the Criminal Investigating department West Bengal in place of Officer-in-Charge of Basirhat police station. Learned Counsel has questioned the investigation, as it appears that the same was not done in its entirety by the CID Department. He has drawn the attention that the CID West Bengal took over the case after examination of three witnesses and thereafter on completion of the same submitted charge-sheet. According to him this is in utter violation of the order of this Hon'ble Court's direction contained in the aforesaid Civil Order of 1994. Sri Moitra besides the above has urged that Lalu Alias Tusar Dey ought to have been placed in the category instead of an accused ; rather he ought to have been made a prosecution witness. That apart he has drawn the attention of the recovery of the arms from the custody of the accused and also drawn the attention of the Court that keeping in view of the evidences of 1)P. W. 1 Modhusudan Das 2) Bibhas Das corroborated by others goes to show that they found the accused were running away form the scene i. e. , place of occurrence, thus, this goes to show that it is the admitted position that the accused were escaping therefrom where the occurrence is admitted to have taken place. ( 5 ) BESIDES the above the learned Counsel Mr. Moitra has urged the confessional statements of the accused Babun Kundu and another (Lalu dey), the report of the arms expert (witness No. 21 ). ( 5 ) BESIDES the above the learned Counsel Mr. Moitra has urged the confessional statements of the accused Babun Kundu and another (Lalu dey), the report of the arms expert (witness No. 21 ). He on examination of the seizure articles found that it contained 1. 410 hand grif pipe gun and 1 round cartridge and after examination he found, that the arms was in working order and the cartridge was fired from that devise. This report has been marked as Exhibit 8. That report read togetherwith Dr. P. K. Pal. His evidence recorded injury of the deceased Tapas Alias Boby goes to show that he died of gun shed injury and that was homicidal in nature and that the accused were the oerpetrators of the aforesaid crime but despite all this evidences on record a miscarriage of justice ensured by virtue of the impugned judgment of acquittal. ( 6 ) MR. Ashim Kumar Roy, learned Counsel, in course of his argument has stated that in spite of the grievances made by learned lawyer on behalf of the revision petition in connection with the non-compliance of the order of this Court in Civil Order No. 17467 of 1994 wherein it was directed that the investigation of the aforesaid case was to be made by the CID West Bengal but the same was not done in its entirety. Sri Roy goes on arguing that the order which is one dated 23rd December, 1994 while the charge-sheet is under Sections 25/27 of the Arms Act against accused Gugan Kundu. Sri roy urges that despite submission of the charge-sheet as aforesaid no steps were taken by the revision petitioner/de facto-complainant of the aforesaid case to take out a proceeding for contempt against the CID West Bengal for non-compliance of the order of this Court dated 23rd December, 1994. According to Mr. Roy at this stage when the petitioner allowed the trial of the session case of 1997 which came to an end on 29th March, 2000 be reopened and for all practical purposes he has no remedy at this stage and/ or if any or at all he is acquiesced/waived the same. According to Mr. Roy at this stage when the petitioner allowed the trial of the session case of 1997 which came to an end on 29th March, 2000 be reopened and for all practical purposes he has no remedy at this stage and/ or if any or at all he is acquiesced/waived the same. According to Sri Roy section 401 provides the scope of revisional jurisdiction challenging order of acquittal and according to him the object of the revisional jurisdiction as envisaged in the aforesaid section is to confer upon the superior Criminal courts a kind of paternal supervisory jurisdiction in orderto correct miscarriage of justice arising from misconception of law, irregularity of procedure neglect of proper prosecutions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order and on the other hand in some undeserved hardship to some individuals. In support of the aforesaid contention he has sited the reported decision in 2000 C Cr lr (SC) 643, Jagannath Choudury and Ors. v. Ramayan Singh and Anr. He has further cited the following decisions namely : 1) 99 C Cr LR (Supreme Court) 17, Bimal Singh and Suman Singh and Anr. 2) 96 C Cr (SC) 132, Bansilal and Ors. v. Laksman Singh. 3) 78 (1) Supreme Court Cases 27, Thakur Das (Dead) by Legal representative v. State of Andhra Pradesh and Anr, 4. AIR 62 Supreme Court 1788, K. Chinnashami Reddi v. State ofandhra Pradesh and Anr. 5) AIR (38) 51 Supreme Court 196, D. Stephen v. Nosibolia. ( 7 ) BEFORE discussing the respective contentions of the parties let the prosecution case in short be summarised for better appreciation of the same. The FIR which has been marked Exhibit-1 states about the factum, that:- on 7. 9. 94 at about 9. 15 p. m. the de facto-complainant modhusudan Das's brother of Tapas Das after taking his night meal went in front of kelibari temple at Barokalibari para. Sri Bubun Kundu (1) Chandan Dey (2) Suso (3) Lalu (4) and others were gossiping. The FIR which has been marked Exhibit-1 states about the factum, that:- on 7. 9. 94 at about 9. 15 p. m. the de facto-complainant modhusudan Das's brother of Tapas Das after taking his night meal went in front of kelibari temple at Barokalibari para. Sri Bubun Kundu (1) Chandan Dey (2) Suso (3) Lalu (4) and others were gossiping. One country made loaded pipe gun was in the hand of Bubun Kundu and at the time of handling the same with the Susu one round of ammunition filed from the pipe gun resulting penetrating wound on the left side of the skull of his brother who was sitting in front of them. He came to know about the fact from Lalu Day that he was present there at the time of incident. Police came down at the spot immediately after the incident and all the miscreants fled away. Policy took charge of the body of his brother and removed it to hospital where he was declared spot dead. ( 8 ) THE aforesaid FIR was lodged on 7. 9. 1994 whereby the machinery of law was set in motion. Thereafter as it appears within the four corners of the record that de facto-complainant moved a writ petition being Civil Order No. 17467 (W) of 1994 before this Court and by an Order dated 23 December, 1994 direction was given for investigation of the aforesaid case by the CID West Bengal instead of Officer-in-Charge Basirhat Police Station. Police on completion of the investigation (CID West Bengal) took charge of the investigation. After initial investigation by the PS submitted charge-sheet charges were framed accordingly and trial commenced. In course of trial 24 prosecution witnesses were examined and the learned Additional Sessions Judge on consideration of materials acquitted all of them. It transpires that the learned Court below framed certain point for the purposes of determination which are as follows:-I) Was there any occurrence as alleged by the prosecution? ii) Was the death of the victim Tapas Das caused by the accused persons with the intention of causing bodily injury likely to cause death or with the knowledge that they were likely by that act to cause death of Tapas Das? iii) Did the accused persons possess and use any unlawful pipe gun? ii) Was the death of the victim Tapas Das caused by the accused persons with the intention of causing bodily injury likely to cause death or with the knowledge that they were likely by that act to cause death of Tapas Das? iii) Did the accused persons possess and use any unlawful pipe gun? iv) Are the accused persons liable to be convicted and sentenced of offence under Section 304 I. P. C. and under Sections 25/27 of the arms Act? ( 9 ) THE learned Judge proceeded that there was no eye witness of the occurrence, thus, prosecution relied upon the circumstantial evidence which has been established through the oral evidence and also the documentary evidence adduced by the prosecution as propounded by the learned P. P. in charge. It transpires in course of trial that the police arrived at the place of occurrence before lodging of the FIR (so it appears that in the paragraph of the FIR Exhibit-1 states that police came in the meanwhile and took the body to hospital ). Learned Court below recorded the evidence of P. W. 1 modhusudan Das, his brother Bibhas Das and all the five witnesses, P. W. 1 and 2 has stated that on their way to Kalibari they saw the accused Chandan. Bubun and Suso escaping but P. W. 3 stated that she also went to the place of occurrence but did not make any whisper about the accused persons escaping therefrom. P. W. 5 Pradip Kumar and Sankar Das stated that Tapas sustained beading injury and there were marks of blood o'n the stairs at the p. o. P. W. 23, the I. O. , in his cross-examination stated thatr he could not found any blood or blood consumed earth at the p. o. ( 10 ) LEARNED Court below held that from the evidence on record it cannot be ascertained on the point of their finding blood at the place of occurrence. The prosecution has examined Subodh Kr. Batabyal as P. W. 20, learned judicial Magistrate, who recorded statements of accused Lalu and Santanu kundu under Section 164 Cr. P. C. marked as Exnibits-6 and 7 which goto show that these are neither here nor there pointing to anything tangible. ( 11 ) MR. The prosecution has examined Subodh Kr. Batabyal as P. W. 20, learned judicial Magistrate, who recorded statements of accused Lalu and Santanu kundu under Section 164 Cr. P. C. marked as Exnibits-6 and 7 which goto show that these are neither here nor there pointing to anything tangible. ( 11 ) MR. Moitra learned lawyer for the revision petitioner has placed reliance on the evidence of Sarat Chakraborty P. W. 4 and P. W. 3 wherein it appears that the recovery was made from a bush at the place of occurrence. According to him the learned Court's finding of inconsistency in between p. Ws. 4 and 23 is of no sequence and it was not appreciated in its proper perspective but on perusal of the same, Exhibit 6 a seizure list, it appears that the entries made in the seizure list are not an admissible one under section 27 of the EVIDENCE ACT, 1872. Statement leading to the recovery of weapons is an exception to the rule as provided under Section 27 and unless the same is recorded in the running case diary the mere writing of the factum in the seizure list itself is of no sequence and cannot be taken place as of the statement of the accused rather it be a noted work of the person who has drawn up the seizure list itself i. e. , seizing officer here in this instant case p. W. 23. ( 12 ) THE death of a brother of the de facto-complainant is no doubt an unfortunate one but at the same time of prosecution case as apparent from the FIR (Exhibit 1) which goes to show that Tapas was acquainted with all the accused, used to chat in the premises of Kalibari temple and they have had an opportunity to inspect an impoverished firearm which all on a sudden in a melee was fired killing Tapas the victim instantly. Admittedly the charge under Section 304 is a substantive offence having mens rea on the part of the accused but it is the admitted case of the prosecution there is no mens rea shown and/or even attributed on the part of the accused having any ill motive not to speak of any animosity far less of a mens rea. Admittedly the charge under Section 304 is a substantive offence having mens rea on the part of the accused but it is the admitted case of the prosecution there is no mens rea shown and/or even attributed on the part of the accused having any ill motive not to speak of any animosity far less of a mens rea. ( 13 ) IN the absence of a complete chain of circumstantial evidence which may go irresistibly pointing the case the learned Additional Sessions judge acquitted the accused. ( 14 ) LEARNED Trial Court has elaborately discussed the evidence and materials-on-record and came to the aforesaid finding of acquittal on the grounds amongst others that :-I) FIR and the U. D. case position have not been explained by the prosecution. ii) The voluntary character of the confession of the accused was doubted as P. W. 20 the learned Judicial Magistrate did not question them as to what prompted them to confess. iii) P. Ws. 1 and 2 while stated about escaping the accused p. W. 3 the mother did not corroborate and that such vital fact was not incorporated in the FIR (Exhibit 1) iv) Extra judicial confession of accused Lalu has not been relied on the ground that it was not in proper form and nature. v) The seizure of the weapon has been doubted as to from whom it was seized as the same was not definite and conclusive. ( 15 ) ON the aforesaid contention of the respective parties and after careful perusal of the evidences on record I am of the view that besides the aforesaid points there are some other points which I am inclined to add on perusal of the evidence namely the seizure list (Exhibit-12) where it states that it was an impoverished pipe gun loaded with one round fire cartridge. The seizing officer has stated in the petition itself that it was recovered from a bush near the locale but no statement has been recorded. ( 16 ) MR. Moitra learned Counsel for the revision petitioner has urged that there is the signature of the accused on the seizure list itself and that it has been clearly written that as per the statement of the accused Bhuban kundu it was so recovered in presence of the witnesses P. Ws. 4,15 and 16. ( 16 ) MR. Moitra learned Counsel for the revision petitioner has urged that there is the signature of the accused on the seizure list itself and that it has been clearly written that as per the statement of the accused Bhuban kundu it was so recovered in presence of the witnesses P. Ws. 4,15 and 16. On perusal of the same I find that in respect of the seizure there is no consistency in respect of the evidences of the seizing witnesses and that there is no whisper of any statement recorded under Section 27 of the evidence ACT, 1872 which is an exception to the rule in respect of admissibility of statements of the accused while he is in custody. ( 17 ) THE recovery, thus, has not been proved. Moreso, on such possession of such a firearm has got to be shown and pinpointed as to from whom it was seized and who was the owner of the same. There is no such whisper within the four corners of the materials in the record. ( 18 ) IN the absence of the requirements of the Section 27 of the Evidence act only which parties admissible has not been complied as nothing shown from the C. D. itself that any such statement of the accused was at all recorded, thus, the writing on the seizure list itself (Exhibit 12) is of no avail for the prosecution. ( 19 ) THAT apart the arms expert has found that 1. 410 hand grif folding type improvise pipe gun and 410 empty cartridge was sent to him. ( 20 ) IN the absence of any clarification and/or conciliation of the apparent 303 knot empty fire cartridge itself stated to have been seized how the arms expert get 410 empty fire cartridge? ( 21 ) LEARNED Additional Sessions Judge has also found that the criteria of the offence as provided under Section 304 I. P. C. has no where been find within the four corner" of the record. ( 21 ) LEARNED Additional Sessions Judge has also found that the criteria of the offence as provided under Section 304 I. P. C. has no where been find within the four corner" of the record. ( 22 ) THE offence culpable homicidal has been defined in Section 299 of the I. P. C. :-"whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. " ( 23 ) IN respect of another aspect which also requires to be taken into account that at the relevant point of time there was load shading as it has come out from the evidence of P. W. 5 the accused Lalu's stated confession. However, in respect of the voluntariness of the confession as has been doubted by the learned Trial Judge cannot be sustained as P. W. 20 the learned Judicial magistrate who recorded the statements took enough precaution to ascertain the voluntariness of the aforesaid confession. However, the contents thereof neither here nor there and that it does not throw any light to unearth the truth. ( 24 ) I am also inclined to add on careful perusal of the inquest report, the P. M. report and the evidence of the doctor who held the post mortem goes to show that the injury of Tapas alias Boby was near the cheek and it is a horizontal one and not a vertical one. The surrounding circumstances as has been stated in the FIR if anybody other than Tapas was handling the gun, if any or at all, then the sudden firing of the gun would have caused an injury to anybody which ought to have been vertical in nature and not horizontal as found in the nature of injury on the body of Tapas. Thus, it cannot be ruled out that it was he who was examining the intricacies of the weapon without knowing its apparatus and its sequence. Mr. Moitra has urged that his client could not take any effective steps before hand that resulted in the acquittal of the accused and cause grave miscarriage of justice. Thus, it cannot be ruled out that it was he who was examining the intricacies of the weapon without knowing its apparatus and its sequence. Mr. Moitra has urged that his client could not take any effective steps before hand that resulted in the acquittal of the accused and cause grave miscarriage of justice. ( 25 ) ON perusal of the entire materials-on-record and relevant papers within the four corners of the Trial Court it appears that the de facto-complainant (the revision petitioner here) filed vokalatnama in SDJM's Court on 1. 10. 94. Thereafter, he sought adjournment before the Learned Sessions judge on the ground of change of public prosecutor on 2. 3. 98 and eventually got one public prosecutor allotted by the Legal Remembrancer by the Government of west Bengal. Keeping in view of the aforesaid facts there is no gainsaying that he have had no opportunity beforehand to come to this Court in respect of any material irregularity in connection with the trial in the meanwhile and that what mr. Roy learned defence counsel urged that there is no remedy available to him in pursuance of the order passed in Civil Order No. 17467 (W) of 1994 and the order passed therein dated 23rd December, 1994. ( 26 ) THE aforesaid judgment of acquittal does not appear to suffer from any illegality/irregularity causing grave miscarriage of justice and/or has shaken the justice delivery system and/or pricking the conscience of the court leave no scope of interference in respect of the impugned order which admittedly is a very limited one (under Section 401 Cr. P. C. ). ( 27 ) THE aforesaid decisions (supra) go to show that the power of revision by itself is a very restricted and/or limited one and that in the absence of the aforesaid causes resulting in the failure of justice cannot be invoked. ( 28 ) AND in a criminal trial there is always a presumption of innocence and that is strengthened by the fact urn of an acquittal, the State by itself has not come forward with an appeal against the said acquittal. ( 28 ) AND in a criminal trial there is always a presumption of innocence and that is strengthened by the fact urn of an acquittal, the State by itself has not come forward with an appeal against the said acquittal. Thus, in the aforesaid case I am of the view that now it is well settled in a long catena of cases that exercise of power be it under Section 401 and /or under Section 482 as the case may be cannot but be prescribed to be discretionary and this discretion, however, is to be exercised judicially not in an arbitral manner. II be so exercised only in the event of glaring defect in the procedural aspect or there being a manifest error on a point of law thus causing a fragrant miscarriage of justice. Exercise of revisional jurisdiction under this statute ought not to be called for in the Court at hand. ( 29 ) IT is the factual context to be considered by the Court and in the absence of such a grave and fragrant miscarriage of justice it be not invoked. Moreso, that a "damocles sword" cannot be kept hanging on the O. Ps. who has already undergone the trauma proceedings and eventually acquitted on trial by the learned Additional Sessions Judge which do not suffer from any material irregularity be it procedural or in law be directed to stand trial afresh and keep the 'damocles sword' hanging over again for some period indefinite. ( 30 ) HOWEVER, in the case in hand the materials placed within the four corners of the record do not deserve to be considered a just one for exercising the discretion in favour of any retrial or so as the impugned order does not suffer from any glaring irregularity/illegality or any manifest defect in the procedural aspect or error on a point of law. In the result revision be dismissed. Later- Urgent xerox certified copy be supplied to the parties as expeditiously as possible.