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2005 DIGILAW 407 (CAL)

GOPAL SIDHYA v. STATE OF WEST BENGAL

2005-06-29

ARUN KUMAR BHATTACHARYA, DEBIPRASAD SENGUPTA

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A. K. BHATTACHARYA, J. ( 1 ) THE hearing stems from an appeal preferred against the Judgment and order of conviction and sentence passed by the learned Judge, Special Court-cum-Additional Sessions judge, Cooch Behar in Sessions Case No. 38/94 on 24. 08. 1999. ( 2 ) THE Prosecution case, in brief, in that on 07. 10. 1992 at about 9. 30 p. m. on receipt of an information from the public, the defacto complainant (P. W. 1) had been to the P. O. , found and came to learn that at about 9. 15 p. m. while his brother-in-law Dwijendra Nath Roy was returning to house after viewing a video show, on the way he was attacked and assaulted by accused Gopal Sidhya and his two brothers accused Sunil Sidhya and Anil Sidhya with a spear due to previous grudge thereby causing his death in front of the house of said Gopal. Hence, all the three accused persons were charged under section 302/34 IPC. ( 3 ) THE defence case, as suggested to P. Ws and as contended by the accused persons during their examination under section 313 cr. PC, is that they are innocent and they have been falsely implicated in this case. ( 4 ) 21 witnesses were examined on behalf of the Prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and matarials on record, the learned Court below while acquitted accused Anil Sidhya and Sunil Sidhya of the charge, found the present accused Gopal Sidhya guilty under section 302 IPC convicted him thereunder and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5000/- i. d. to R. I. for five hundred days. ( 5 ) BEING aggrieved by and dissatisfied with the above order of conviction and sentence, the said accused Gopal has preferred the present appeal. ( 6 ) ALL that now requires to be considered is whether the learned court below was justified in passing the above order of conviction and sentence. ( 7 ) OUT of those 21 witnesses, as many as twelve viz. P. Ws. 2 to 7, p. W. 12, P. W. 13, P. Ws. 15 to 18 were declared hostile. ( 6 ) ALL that now requires to be considered is whether the learned court below was justified in passing the above order of conviction and sentence. ( 7 ) OUT of those 21 witnesses, as many as twelve viz. P. Ws. 2 to 7, p. W. 12, P. W. 13, P. Ws. 15 to 18 were declared hostile. ( 8 ) BEFORE opening the discussion, and indeed as paying the way for it, we may shortly discuss the evidence of those hostile witnesses and autopsy surgeon (P. W. 20 ). ( 9 ) P. W. 2 on hearing a sound "chor, chor" at about 9. 30 p. m. came out of his residence and found the victim Dwijendra Nath Roy lyingon the road in front of the entrance gate of accused Gopal. Similar is the evidence of P. Ws. 15 and 18. P. Ws. 3. 4, 7 and 12 found the victim at about 10:30 p. m. Inside the gate of the house of said accused, while P. W. 11 found him on the ground but the exact location i. e. on this road or inside the gate has not been disclosed. P. Ws. 5 and 13 expressed their ignorance about the said murder. P. W. 6 (wife of accused Gopal) kept herself silent and P. Ws. 16 and 17 heard about the murder. ( 10 ) P. W. 20 on holding P. M. examination over the dead body of the victim on 08. 10. 1992 found five stab injuries on different parts of the body and seven injuries after dissection and opined that the death was due to shock inflicted by injuries which were ante mortem and homicidal in nature. ( 11 ) ACCORDING to the evidence of P. W. 1, on 07. 10. 1992 at about 9. 30 p. m. an receipt of information from Sundar Mohan Ray (P. W. 9) (wrongly described as Sundarmal Roy) who came to him that dwijendra Nath Roy was taken to the house of Gopal who assaulted him there with a ballam, he sent information to the P. S. followed by his going to the residence of Gopal and finding victim Dwijendra nath Roy lying dead on the ground and accused Gopal standing there with a ballam stained with blood in his hand. Police came to the spot, apprehended Gopal along with the said ballam. He lodged a complaint (Ext. Police came to the spot, apprehended Gopal along with the said ballam. He lodged a complaint (Ext. 1) which was scribed by Nirmal Dutta (P. W. 15} according to his instruction, to O. C. , police camp at Dhapra. Police held inquest over the dead body of the victim, seized blood-stained spear, four pieces of cloth and some blood stained earth from the house of accused Gopal in his presence under as list and also wearing shirt, one handkerchief, one genji, one jangia, one pair of chappal and some money from the dead body of the victim under another a list. The above evidence appears to be quite contradictory not only with the FIR but also with the evidence of other witnesses inasmuch as that he was informed by P. W. 9 that accused Gopal took the victim to his house and assaulted him with a spear or that he found accused gopal standing at the P. O. with a spear stained with blood in hand, or that the police came to the P. O. and apprehended accused Gopal with the blood-stained spear do not find place in the FIR which thus appear to be embellishment, the above evidence is also inconsistent with the FIR where it has been specifically averred that the death of the victim was caused in front of the house of Gopal. According to the inquest report (Ext. 2), the incident took place at about 9. 15 p. m. when the victim 'on way to his house after viewing a video show reached in front of the house of accused Gopal and was assaulted by gopal and his two brothers with a spear. P. W. 1 claims to have received the information from P. W. 9 in front of the said video hall which its at a distance of about km. from the house of accused gopal which is belied by P. W. 9 who stated that after watching a cinema while he along with Birbhadra (P. W. 10) was returning to house, he heard a shout from the residence of Gopal, came to the spot and found a scuffle between Gopal and the victim and thereafter he went to the house of P. W. 1 and reported that the victim was taken to the house of accused Gopal for the purpose of assault. In other words, P. W. 9 reported the matter to P. W. 1 at his house and not in front of the video hall, as claimed by P. W. 1, and there was no communication from P. W. 9 that accused Gopal assaulted the victim with a spear. P. W. 10 who along with P. W. 9 was returning to their respective houses after watching a cinema, heard a shout, went there and found accused Gopal. assaulting the victim with a spear with the assistance of accused Anil and Sunil, went to the residence of Ganesh and after narrating the fact to him came back to the P. O. after an hour and found accused Gopal standing there with a spear by the aide of the dead body of the victim. In cross-examination he deposed that he did not find accused Gopal asaulting the victim with a spear with the assistance of Anil and Sunil. If that be so, why he along with Ganesh came back to the P. O. is not clear, and so it belies the story of his finding accused Gopal standing with a spear by the side of the dead body of the victim. He cannot say the name of the film he watched on that night. The said Ganesh has not been examined. The above very evidence which is self-contradictory falsifies the said testimony of P. W. 9 of witnessing scuffle between accused Gopal and the victim, since had it been so, it would have been seen by P. W. 10 also. P. W. 11 while returning to his residence after viewing a cinema came to the P. O. on hearing a shout and found the victim lying on the ground in injured condition and he did not find the accused persons there which strengthen the above finding that neither P. W. 9 nor P. W. 10 saw accused Gopal to assault the victim with a spear nor P. W. 10 had any occasion to find accused gopal standing there with a spear by the side of the victim, and it thus negatives the above evidence of P. W. 1 of seeing accused Gopal standing on the P. O. with a spear stained with blood in his hand. Moreover, an offender after committing crime at about 9. Moreover, an offender after committing crime at about 9. 15 p. m. would wait at the P. O. with the weapon of offence only to be seen by persons of the locality and to be apprehended by police is not worthy of belief. Time of seizure of the weapon of offence and the person from whom seized, as reflected in the S. list (Ext. 3) are 21. 55 hrs. on 07. 10. 1992 and in the house of Gopal Sidhya by the side of dead body of the victim respectively which also falsifies the above testimony of P. W. 1 and P. W. 10 regarding their finding accused Gopal standing at the p. O. with the blood-stained spear. The seized articles including weapon of offence have not been produced before the Court during the time of trial and such non-production of seized articles amounts to withholding of best evidence and adversely affects the Prosecution case. In this connection, the case of Md Aman v. State of Rqjasthan, reported in 1997 SCC (Cr.) 777 may be referred to. ( 12 ) THE mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him unreliable so an to exclude his evidence from consideration altogether, and his evidence is to be considered for what it is worth, as was held in the cases of Bhagwan Singh v. State of Haryana, reported in AIR 1976 SC 202 and Sat Paul v. Delhi Administration reported in air 1976 SC 294 . In other wards, evidence of a hostile witness can be accepted in part and it is to be considered in the light of other evidence on record. Here, none of the aforesaid witnesses P. Ws. 2, 3, 4, 7, 11, 12, 14 and 15 found accused Gopal there which appears to be quite in consonance with the circumstances. The averment in the FIR (Ext. 1) that the death of the victim was caused in front of the house of accused Gopal is buttressed by the testimony of P. Ws. 2 and 15, and the evidence of P. W. 1 and other witnesses regarding taking place of the alleged occurrence inside the house of accused gopal to quite contradictory. The averment in the FIR (Ext. 1) that the death of the victim was caused in front of the house of accused Gopal is buttressed by the testimony of P. Ws. 2 and 15, and the evidence of P. W. 1 and other witnesses regarding taking place of the alleged occurrence inside the house of accused gopal to quite contradictory. In the absence of any evidence, particularly of the first I. O. who could not be examined on account of death, it is not clear how the P. O. was shifted from road to inside the premises of accused Gopal. ( 13 ) NEVERTHELESS, in the light of the above contradictory evidence, the Prosecution cannot be held to have brought home the charge against accused Gopal beyond all reasonable doubt, and as such Gopal is found not guilty. ( 14 ) ACCORDINGLY, the appeal be allowed on contest. Accused Gopal sidhya be acquitted of the charge under section 302 IPC, and he be set at liberty at once and be released from custody forthwith, if not required in connection with any other case. ( 15 ) ALAMATS, if any, be destroyed after the period of appeal is over. Let a copy of this Judgment along with the LCR be sent down at once to the learned Court below. Appeal allowed.