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2005 DIGILAW 443 (CAL)

PALTU SHEIKH v. STATE OF WEST BENGAL

2005-07-14

ARUN KUMAR BHATTACHARYA, DEBIPRASAD SENGUPTA

body2005
SENGUPTA, J. ( 1 ) THIS appeal is preferred against the judgement and order of conviction and sentence passed by the learned Additional Sessions Judge, 3rd Court, Nadia, Krishnanagar in Sessions Case No. 7 of 1995 (Sessions ; trial No. II of June, 1996) thereby convicting the accused appellants under section 304/34 of the Indian Penal Code and sentencing appellant No. 1 Paltu sheikh to suffer imprisonment for life with a fine of Rs. 2,000/- and appellant nos. 2 and 3, namely Rafat Sheikh and Mohiruddln Sheikh to suffer imprisonment for 7 years each and to pay fine of Rs. 1,000/-each, in default to suffer further R. I. for 6 months. ( 2 ) IT would be relevant and convenient to reproduce, in brief, the factual scenario of the case as highlighted by the prosecution. P. W. 1 Anwara Bibi lodged a complaint to the Officer-in-Charge, Karimpur Police Station on 2. 6. 94 to the effect that on the said date at about 10. 00 A. M. when her son Jahir Sheikh was engaged in ploughing their own land, accused Rafat Sheikh, Mahiruddin Sheikh and Paltu Sheikh, who are the residents of the same village, protested and asked Jahir Sheikh not to plough the said land. Over this issue, there was a hot exchange of words amongst them and in course of such quarrel accused persons assaulted her son with a bamboo pole on his head causing bleeding injury. Injured Jahir Sheikh was thereafter brought to Karimpur Hospital for treatment, but seeing the serious condition of the patient the concerned doctor of Karimpur Hospital advised to take him to Berhampur Sadar Hospital for treatment. Arrangements were made to take him to Berhampur Hospital but on the way to hospital injured Jahir Sheikh expired. The ejahar was written by one belial Hossain (P. W. 8) and on the basis of such complaint, FIR was registered with Karimpur P. S. under Section 325/34 I. P. C. and on completion of investigation charge-sheet was submitted under Section 325/34/304, I. P. C. Charge was framed by the learned trial Judge under Section 304/34, I. P. C. ( 3 ) TO bring home the charge against the accused persons prosecution examined 10 witnesses including the medical officer and the investigating officer. None was examined on behalf of the defence and the defence plea was of innocence and false implication. None was examined on behalf of the defence and the defence plea was of innocence and false implication. ( 4 ) LET us now analyse and examine the testimony of the witnesses on the anvil of reliability and broad probability. Let us start with the evidence of the eyewitnesses. RWs. 3, 4, 5 and 6 are the eyewitnesses to the incident of assault. RWs. 3, 4, 5 and 6 stated in their evidence that they saw accused paltu Sheikh to assault Jahir Sheikh on his head by a bamboo pole and other two accused persons assaulted the victim on his ear, nose and face with bamboo poles. P. W. 1 mother of the victim stated in her evidence that her son was assaulted by the three accused persons with bamboo poles on his head, neck, nose and face which caused bleeding injuries. She further deposed that the place of occurrence was adjacent to her house and at the relevant time her son was engaged in the work of ploughing. P. W. 2 is the father of the deceased and he deposed that being attracted by the alarm raised by his son he rushed to the place of occurrence and saw that one bamboo pole stained with blood was lying on the field and accused Rafat and Mahiruddin with two other bamboo poles and Paltu with bare hand were fleeing away from the place of occurrence. ( 5 ) P. W. 7 is the Investigating Officer of the case, who visited the place of occurrence, examined witnesses, seized the blood stained bamboo pole and on completion of investigation submitted charge-sheet. P. W. 8 is Billal hossain, who wrote the 'ejahar' as per direction of Anwara Bibi. P. W. 9 is the police officer, who received the written complaint and recorded FIR. P. W. 10 is the Autopsy Surgeon, who found following injury : "one scalp- left parietal region multiple stiched wound 2" length bones involved and bleeding from mouth and nose. " ( 6 ) IN his opinion, death was due to shock and haemorrhage caused by the said injury which was antemortem and homicidal in nature. He was of further opinion that the injury was caused on the vital part of the body and the same might be caused by a bamboo lathi and it might cause instant death. ( 7 ) MR. He was of further opinion that the injury was caused on the vital part of the body and the same might be caused by a bamboo lathi and it might cause instant death. ( 7 ) MR. Dastoor, learned Advocate appearing for the appellants submits that there was an unexplained delay in lodging the FIR as also in forwarding the same to the nearest Magistrate. Mr. Dastoor points out that the incident took place on 2. 6. 94 at about 10. 00 A. M. , but FIR was lodged on the same date at 16. 15 hours. Although the date and time of despatch of such FIR was mentioned as 3. 6. 94 at 08. 00 hours, from the record it appears that the magistrate received it on 6. 6. 94, i. e. 3 days from the date of despatch from the police station. No explanation was offered for this extraordinary delay in sending the report to the nearest Magistrate. In support of his contention, Mr. Dastoor relies upon two judgements of the Hon'ble Apex Court reported in (1976)4 scc 355 (Ishwar Singh v. State of U. P) and 1975 SCC (Cr) Page 601 (Balaka singh and Ors. v. State of Punjab) and submits that this unexplained delay of 3 days in forwarding the FIR to the nearest Magistrate is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour thereby affording sufficient time to the prosecution to introduce improvements, embellishment and to set up a distorted version of the occurrence. Mr. Dastoor next points out that there are contradicting evidence regarding the place where the FIR was written. P. W. 1 stated in her examination in chief that she alone went to Karimpur P. S. for lodging FIR and her husband, son and others left for Berhampur hospital. She further deposed that complaint was written by P. W. 8 Billal as per her instruction and after it was read over, she put her L. T. I. In her cross-examination, she stated that she found Billal (P. W. 8) at Karinapur Bazar when she was on the way to hospital and she called him from there. But RW. 8 Billal deposed that he met Anwara Bibi at her home and wrote the complaint as per direction of anwara Bibi (P. W. 1 ). But RW. 8 Billal deposed that he met Anwara Bibi at her home and wrote the complaint as per direction of anwara Bibi (P. W. 1 ). He was present there when police came at 4/4. 30 P. M. P. W. 9 stated in his cross examination that he received the complaint from anwara Bibi (P. W. 1 ) at 4. 15 P. M. at the P. S. It is the contention of Mr. Dastoor that such contradiction casts a serious doubt on the actual place and time of handing over the complaint to the police and registration of F. I. R. The learned advocate submits that with the registration of FIR, a corresponding G. D. Entry is always made by the police which was not done in the present case and this also indicates that the first information report was not recorded or lodged at the time it purports to have been lodged. ( 8 ) THE learned Advocate of the appellant next argues that it is in the evidence of the prosecution witnesses that immediately after the incident the victim was taken to Karimpur hospital, where he was treated for about one and half hour and after such treatment, when his condition became serious, he was forwarded to Berhampore hospital. But surprisingly not a single witness from Karimpur hospital was examined and not a single scrap of paper relating to the treatment of the victim in the said hospital was collected by the investigating officer. There is nothing in the evidence on record to show that the names of assailants were disclosed to any doctor or any hospital staff of karimpur hospital. This also creates a grave doubt as to whether the injured victim was at all treated in Karimpur hospital. ( 9 ) MR. Dastoor next points out the inconsistency between the ocular evidence and medical evidence in the present case. PWs. 1, 3, 4 and 6 - all stated about conjoint assault on the victim by the accused persons. PW. 1 stated in her evidence that accused persons came and assaulted her son with bamboo poles on the head, neck nose and face which caused bleeding injuries. P. W. 3 stated in his evidence that he saw Jahir Sk. was being assaulted by the accused persons with bamboo poles on head and shoulder. P. W. 4 saw the three accused persons assaulting Jahir Sk. P. W. 3 stated in his evidence that he saw Jahir Sk. was being assaulted by the accused persons with bamboo poles on head and shoulder. P. W. 4 saw the three accused persons assaulting Jahir Sk. with bamboo poles. P. W. 6 deposed that when he rushed to the spot he found Paltu Sk. to assault his brother on head by bamboo pole and accused Rafat and Mohiruddin to assault by lathi. The learned Advocate submits that such ocular evidence is totally inconsistent with the medical evidence. P. W. 10, the Autopsy Surgeon found only one injury on the body of the victim. Mr. Dastoor submits that when a person is assaulted by three accused persons conjointly with bamboo poles and lathis, it is quite natural and is also expected that there will be number of injuries on the body of the victim. In such a case where oral testimony of witnesses is in conflict with the medical evidence and in view of such inconsistent evidence the Court is satisfied that true picture of occurrence was not placed before the Court, the accused persons are entitled to get benefit of doubt. In support of his contention, mr. Dastoor relies upon two judgements of the Hon'ble Apex Court reported in air 1981 SC-1578 (Mohar Singh and Ors. v. State of Punjab) and 1994 Cr LJ 1385 (Sri Niwas v. Rambharose and Ors. ). In the case of Mohar Singh (supra) it appears that in a murder case where the witnesses categorically stated that the accused assaulted the deceased with spade but the doctor who held the autopsy of the deceased clearly stated that the injuries could be caused only by a 'kassi (pick-axe) the accused was given benefit of doubt in view of glaring inconsistency between the ocular and medical evidence. In the case of Sri niwas (supra) also the accused was given benefit of doubt as the oral testimony was in conflict with the medical evidence regarding the nature of injuries inflicted and the Hon'ble Supreme Court was of the view that the true picture of occurrence was not placed by the prosecution before the Court. ( 10 ) REFERRING to the examination of accused persons under Section 313, Cr. P. C. , it is submitted by Mr. ( 10 ) REFERRING to the examination of accused persons under Section 313, Cr. P. C. , it is submitted by Mr. Dastoor that no question was put to the accused as regards the fact that all the three appellants came together and conjointly assaulted the victim. Medical evidence and the circumstances relating to common intention were not put to any of the accused causing serious prejudice to the accused appellants, which is not curable. ( 11 ) THE last argument advanced by Mr. Dastoor, learned Advocate of the appellant is that the occurrence took place without pre-meditation in a sudden fight in the heat of passion on a sudden quarrel between the accused and the deceased and he had no intention to cause bodily injury likely to cause death and in such a case if the appellants are at all convicted, the conviction under Section 304, Part II is proper. ( 12 ) THE learned Advocate of the State/respondent, in his usual fairness, supports the contentions made by the learned Advocate of the appellant and submits that unexplained delay in forwarding the FIR to the nearest magistrate, non-examination of any witness of Karimpur Hospital, where the accused was treated for one and half hour and finally inconsistency between the ocular evidence and medical evidence - all these things suggest that the incident did not take place in the manner as it has been alleged by the prosecution. ( 13 ) WE have heard the learned Advocates of the respective parties. We have also perused the judgements referred to above. In the present case, incident took place at 10. 00 A. M. on 2. 6. 94 and FIR was registered on the same day at 16. 15 hours. But such FIR was forwarded to the nearest Magistrate on 6. 6. 94, i. e. 3 days after it was despatched from the police station. In such circumstances, there is sufficient reason to accept the defence version that such FIR was registered much later than the given date and hour giving sufficient time to the prosecution party, who are admittedly inimical to the accused, to set up a distorted version of the occurrence. Apart from this, there is contradicting evidence of witnesses regarding time and place of handing over the written complaint to the police for registration of such FIR. Apart from this, there is contradicting evidence of witnesses regarding time and place of handing over the written complaint to the police for registration of such FIR. ( 14 ) ALTHOUGH it is in the evidence that immediately after the incident the victim was taken to Karimpur hospital and was treated there for one and half hour, not a single witness from the hospital staff was examined and not a single scrap of paper relating to the treatment of the injured victim in the said hospital was produced in Court by the prosecution. There is nothing on record to show that the names of assailants were disclosed to any doctor in Karimpur hospital. ( 15 ) AS regards the inconsistency between the ocular evidence and medical evidence, we also find sufficient merit in the submission made by Mr. Dastoor. It is in the evidence on record that all the three accused persons conjointly assaulted the victim with bamboo poles and in such a case it is expected that the victim will sustain multiple injuries. But the autopsy surgeon found only one injury on the body of the victim. In view of this glaring inconsistency between the ocular and medical evidence, it will be extremely unsafe to maintain the conviction of the appellants on such evidence. ( 16 ) DURING cross examination alleged eyewitnesses were confronted with their previous statement recorded under Section 161, Cr. P. C. by the investigating officer of the case to indicate that they did not make such statement as eyewitnesses while examined by the I. O. Though each of the witnesses denied such suggestion, the I. O. in course of his cross examination has admitted that none of those witnesses had stated before him about seeing the assault or attack by the accused persons. Posted with these circumstances the learned advocate of the State also submits that the deficiency and infirmity in the evidence of eyewitnesses remained unexplained on the score as to why such statements did not find place in the earlier statements of the said witnesses recorded by police under Section 161, Cr. P. C. The evidence of such witnesses does not inspire confidence to accept them as eyewitnesses to sustain the order of conviction recorded against the appellants. P. C. The evidence of such witnesses does not inspire confidence to accept them as eyewitnesses to sustain the order of conviction recorded against the appellants. We also find that due to improper investigation and slack prosecution the evidence is too slender to pass an order of conviction and as such we extend the benefits of doubt to the accused appellants. ( 17 ) IN view of the discussion made above, we find sufficient merit in the submission made by Mr. Dastoor, learned Advocate of the appellants. We are clearly of the opinion that the prosecution case has not been proved beyond reasonable doubt. ( 18 ) THE appeal is accordingly allowed. The impugned judgement and order of conviction and sentence passed by the learned Additional Sessions judge, 3rd Court, Krishnanagar, Nadia in Sessions Case No. 7 (7)/95 (Sessions trial No. II (6)/96) is hereby set aside and the appellants are acquitted of the charges framed against them. The appellants, who, are on bail, will now be discharged from their respective bail bonds.