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2006 DIGILAW 747 (CAL)

Prabhash Dhali v. STATE OF WEST BENGAL

2006-11-28

PARTHA SAKHA DATTA, PRAVENDU NARAYAN SINHA

body2006
Judgment :- P.S. Datta, J. This is an appeal against the judgment and order dated 30.08.2003 passed by the learned Additional Sessions Judge, Fast Track Court-II, Barasat in the district of North 24-Parganas in Sessions Trial No.2(7) of 2003 convicting the appellant under Section 447/307 of the IPC and under section 27 of the Arms Act and sentencing him to suffer rigorous imprisonment for three months with fine of Rs. 500/-with default stipulation on account of the charge under section 447 IPC, seven and half years of rigorous imprisonment with fine of Rs. 5,000/-with default stipulation on account of the charge under section 307 IPC and rigorous imprisonment of three years with a fine of Rs. 3,000/- with default stipulation on account of the charges under section 27 of the Arms Act. 2. Nilima Sarkar (P.W.1) submitted a written ejahar to the O.C. of Gaighata P.S. at 14.25 hours on 17.11.2001 leading thereby to the registration of Gaighata P.S. Case No. 168 of 2001 dated 17.11.2001 against the appellant under the aforesaid sections of law and alleging therein that at 10 a.m. on 17.11.2001 some young boys came to her house in search of her husbands elder brother Bidhan Sarkar (P.W.2). She asked them to sit on the verandah and when Bidhan shortly came home and asked them the purpose of their visit, the miscreants with a view to killing Bidhan fired but the bullet missed Bidhan and hit instead against the wall of the verandah of the house and thus Bidhan narrowly escaped with his life. Then all the inmates of the house raised alarm and the people of the village rushed to the house of P.W.1 and when the miscreants tried to flee away the village people caught hold of the four miscreants and beat them to death and dropped their deadbodies by the side of the road, while others fled away. It has been alleged in the complaint (Ext.1) that out of previous grudge the miscreants attacked the house and tried to kill her husbands elder brother Bidhan. 3. Of the 10 witnesses examined by the prosecution it is the FIR-maker Nilima Sarkar, P.W.2 Bidhan Sarkar, P.W.3 Sima Sarkar (the wife of P.W.2), P.W.5 Chitta Ranjan Das, P.W.8 Dulal Ch. It has been alleged in the complaint (Ext.1) that out of previous grudge the miscreants attacked the house and tried to kill her husbands elder brother Bidhan. 3. Of the 10 witnesses examined by the prosecution it is the FIR-maker Nilima Sarkar, P.W.2 Bidhan Sarkar, P.W.3 Sima Sarkar (the wife of P.W.2), P.W.5 Chitta Ranjan Das, P.W.8 Dulal Ch. Roy and P.W.9 Sanjay Baidya are according to the prosecution the eye-witnesses to the incident, while P.W.4 Smt. Santilata Sarkar, P.W.6 Haripada Mondal and P.W.7 Tarak Biswas are the post-occurrence witnesses. I.O. is P.W.10 Aloke Ranjan Munshi. 4. P.W.1 says that at 10 a.m. on 17.11.2001 5/7 persons came to her house in search of her husbands elder brother Bidhan Sarkar and one of such persons was the appellant. She asked those persons to take sit in the verandah as Bidhan was not at home then. A few minutes after when Bidhan came home the accused fired bullet against Bidhan but the bullet got missed and hit against the wall. All the inmates of the house raised alarm whereupon the co-villagers came to the house. The miscreants tried to flee away but four of them could be caught hold of who were lynched to death. The appellant was in the group of those miscreants who managed to flee away. The cross-examination of this witness relates to the antecedent and personal life of P.W.2 Bidhan Sarkar including her marriage and children, topography of the house of P.W.1, arrest of Bidhan in connection with a case by the Calcutta Police, her non-acquaintance with Tarak Biswas and Dulal Roy and acquaintance with Sanjay Baidya and Haripada Mondal. The important piece of evidence according to the defence of this witness is that she did not mention in the FIR that she knew the appellant Prabhash Dhali and that Prabhash Dhali fired against P.W.2. P.W.2 Bidhan Sarkar says that at 10.30 a.m. when he came back home he found 5/6 persons including the appellant in verandah and when he asked them as to why they had come Prabhash fired from his revolver but it missed the target because the bullet hit against the wall. All the members of the family raised alarm and local people rushed to the spot, Prabhash and some miscreants managed to flee away while four other miscreants were caught red-handed and beaten to death. All the members of the family raised alarm and local people rushed to the spot, Prabhash and some miscreants managed to flee away while four other miscreants were caught red-handed and beaten to death. He has stated in his examination-in-chief that the appellant would collect money from businessmen, owners of the brickfields, shop owners and other people and made himself a terror in the locality. He raised protest against such activities of the appellant and mobilized local people to raise such protest. He has said that if the bullet had hit him he would have died. The entire cross-examination of this witness did not relate to the fact-in-issue but to different matters mostly relating to the antecedent of P.W.2 and parade of suggestions. Now, it has appeared in cross-examination that he has a business of fishery, that he belonged to a political party, that he came to know of the appellant five years ago, that his brother was killed in front of a police outpost and he was an accused in a murder case relating to his brother, that he was arrested once by Calcutta Police and that a case being Gaighata P.S. Case No. 149/91 was pending against him. He denied the suggestions that on 30.11.1998 he assaulted the appellant with the sharp-cutting instrument and fired against him as a result of which the hands of the appellant have become inactive or that he killed four persons by fiream and by beating and he himself was a terror in the locality. He has denied the suggestions of the defence that he took a loan of Rs. 1,00,000/-from the appellant and has falsely implicated the accused when he demanded for payment. P.W.3 Smt. Sima Sarkar, the wife of P.W.2 has corroborated P.W.1 and P.W.2 and it is needless to repeat her statement in examination-in-chief. P.W.5 Chitta Ranjan Das says that when he was cutting straw in the house of P.W.1 at about 10 a.m. on 17.11.2001 six persons came and enquired of Bidhan Sarkar and when Bidhan came a little after the appellant shot against him but the bullet did not hit him but it struck against the wall. Four persons were caught red-handed and beaten to death by public while the appellant and another fled away. P.W.8 Dulal Ch. Four persons were caught red-handed and beaten to death by public while the appellant and another fled away. P.W.8 Dulal Ch. Roy whose house is at the south of P.W.2s house says that he was seated on a bench at 10 a.m. on 17.11.2001 in front of his house and found six persons including the appellant entering into the house of Bidhan Sarkar. They asked whereabouts of Bidhan and within five minutes when Bidhan came by a motor-cycle the appellant took out his revolver and fired against P.W.2, which hit the wall instead of Bidhan. Local people caught hold of four miscreants while Prabhash and another fled away. The question was raised as to how this witness who was in his own house could be able to see the incident, and answer has been given by him in examination-in-chief in this way that there is no intervening wall between his house and Bidhans house. There was no cross-examination worth considering and it was suggested to him only that he belongs to the group of P.W.2, and that he and his people killed four persons. P.W.9 Sanjay Baidya was coming to his house from the field. He found many persons in the house of Bidhan who asked something to Prabhash and Prabhash suddenly took out his revolver and fired against him but bullet hit the wall and Bidhan did not sustain any injury. While Prabhash and another fled away four people were caught red-handed and killed by the members of the public. Again, there was no serious cross-examination of this witness and some suggestions were given to the witness to the effect that he was arrested in August, 2002 by Lalbazar Police under Arms Act, that local police seized some arms and ammunitions from his house, that he belongs to the group of Bidhan Sarkar and that he and his group killed four people. The witness has denied all the suggestions. P.W.4 Smt. Santilata Sarkar a 70-years old neighbour of P.W.2 was scrubbing utensils when she heard hue and cry and sound of firing. She found Prabhash and another fleeing away. From cross-examination of this witness it has appeared that in front of the house of P.W.2 there was a Kali temple. Some suggestions at random were thrown to the witness in course of cross-examination, which the witness has denied although. She found Prabhash and another fleeing away. From cross-examination of this witness it has appeared that in front of the house of P.W.2 there was a Kali temple. Some suggestions at random were thrown to the witness in course of cross-examination, which the witness has denied although. P.W.6 Haripada Mondal who was the scribe of the FIR as per instruction of P.W.1 says in his evidence that at around 10/10.30 a.m. when he was attending to his patients he heard sound of firing and he rushed to the spot and found many persons running here and there out of fear. He went to the house of the de facto complainant and found a mark of bullet in the wall in the house of P.W.2. He further found four persons lying dead on the road. Police seized empty cartridge against a seizure list wherin he signed. The cross-examination of the witness does not elicit anything material worth considering and only it appears that his house is at the distance of one kilometer from the main road which is again not material here. It does not imply that his house is one kilometer of the house of P.W.2. P.W.7 Tarak Biswas says that 5/6 persons entered into the house of Bidhan Sarkar and he heard a sound of firing. Local people caught hold of four persons who were lynched to death while the accused fled away. In his presence police seized an empty cartridge, a cigarette packet and blood-stained mud at around 2.30 p.m. on the day of the incident. It appears from cross-examination that this witness is a goldsmith and on the day he had been to the house of Dulal Roy (P.W.8), who is a neighbour of P.W.2 in connection with getting order from Dulal Roy. P.W.10 Aloke Ranjan Munshi, the I.O. of the case says that in course of investigation of the case he had visited the place of occurrence which means the verandah of the house of P.W.2. He seized one cigarette packet, hair stained with blood, fired empty cartridge against seizure list in presence of P.W.6 and P.W.7. He further says that in course of investigation he came to ascertain that four people who were beaten to death were closely related to the appellant and men of his village. The verandah of the house of P.W.2, says he in his cross-examination, was 12 ft. × 6 ft. He further says that in course of investigation he came to ascertain that four people who were beaten to death were closely related to the appellant and men of his village. The verandah of the house of P.W.2, says he in his cross-examination, was 12 ft. × 6 ft. with height 15 ft. He says in his cross-examination further that he is also the I.O. of Gaighata Case No. 169 dated 17.11.2001 relating to the death of the four people. He says that he did not take any photograph of the place of occurrence, did not send the blood mud, hair, empty cartridge and cigarette packet to the forensic department and to the ballistic expert and that he did not examine any witness on the point as to who had assaulted four persons who succumbed to their injuries. 5. Having thus placed the sum total evidence of the witness we proceed to have a critical appreciation thereof. While analyzing evidence of the witnesses it has come to the surface that P.W.2 and the appellant belonged to two rival group of persons, or else all on a sudden without any motive a person does not ordinarily come to another persons house to fire from revolver against the inhabitant of the house in the verandah thereof. An attempt was made through diverse suggestions by the defence so as to project a very grim picture about P.W.2. It has been suggested that he obtained a local of Rs. 1,00,000/- from the appellant but refused payment therefor, that during the marriage life on 17/18 years of P.W.1 she has seen P.W.2 being imprisoned twice (admitted by P.W.1), that Calcutta Police arrested him in connection with another case and he was in jail for six months (admitted by P.W.1), that P.W.2s first wife committed suicide by taking poison (admitted by P.W.1), that P.W.2 is an accused in a murder case relating to his brother (admitted by P.W.2), that he is also an accused in Gaighata P.S. Case No. 149 of 1991 (admitted by P.W.2), that he is an accused in 10 criminal cases, that he is a terror in the locality and that he killed four persons by firing and by beating. Whatever be the antecedents of P.W.2, a case has to be judged on the basis of the facts, circumstances and evidence of that case; and it is the quality of evidence that would determine the fate of case. 6. With respect to the death of four persons a case being Gaighata P.S. Case No. 169 dated 17.11.2001 was registered but it has not come out from the evidence of I.O. as to who were the accused in that case. It was not suggested to P.W.2 in cross-examination that he was an accused in the murder of four persons. The murder case was also investigated by P.W.10 but it is not clear whether he was submitted or not charge-sheet in that Gaighata P.S. Case No. 169 dated 17.11.2001 under section 304/34 of the IPC. 7. The veracity of the corroborating witnesses namely P.W.4 Santilata Sarkar, P.W.5 Chitta Ranjan Das, P.W.6 Haripada Mondal, P.W.7 Tarak Biswas, P.W.8 Dulal Ch. Roy and P.W.9 Sanjay Baidya was questioned by the defence in course of hearing of arguments on the ground that none of them had come to the house of P.W.2 either at the time of incident or shortly thereafter and these people are but henchmen of P.W.2. It can be fairly stated here that none of six witnesses, (P.W.4 to P.W.9) were seriously cross-examined and the entire cross-examination of each witness consisted of some random suggestions which the witnesses denied forthwith. P.W.4 is a neighbour of P.W.2 and it could not be elicited from her cross-examination or from cross-examination of P.W.1 and P.W.2 that she is not a neighbour of P.W.2. An aged lady as she is, she has stood the test of cross-examination and has been categoric in saying that she had seen the appellant fleeing away. It was suggested to her that in front of the house of P.W.2 there is a Kali temple and her house was not visible from the house of P.W.2. The witness has answered in the negative that her house was not visible from the house of P.W.2 although Kali temple is in front of the house of P.W.2. Criticism was levelled against P.W.5 to the effect that he is an employee in the house of P.W.2 and as such he was made to depose falsely. It was further argued by Mrs. Criticism was levelled against P.W.5 to the effect that he is an employee in the house of P.W.2 and as such he was made to depose falsely. It was further argued by Mrs. Rupna Bhattacharjee (Roy), learned Advocate for the defence that at the relevant time P.W.5 was working in the field and he had no occasion to see the incident. Even if evidence of P.W.5 is completely excluded from the purview of consideration the prosecution case does not suffer from any setback because of unimpeachable evidence of P.W.1, P.W.2, P.W.7 and P.W.8. Though P.W.6 who is the scribe of the FIR is a post-occurrence witness his evidence is most important. Truthfulness of the witness cannot be doubted because of the fact that he does not falsely claim to be the eye-witness. When he was attending to his patients he heard hue and cry and coming to the house of P.W.2 he found four persons lying dead on the road and also found a mark of bullet in the wall of the house of P.W.2. He is also a witness to the seizure of empty cartridge. P.W.7 Tarak Biswas had come to the house of Dulal Ch. Roy (P.W.8) in connection with a job. P.W.8 was not suggested that P.W.7 did not come to his house. That Dulal is a close neighbour of P.W.2 has been affirmed by P.W.2 in cross-examination with the words that at the right side of his house is the house of Dulal Roy and from evidence of P.W.8 it appears that his house and the house of P.W.2 are not intervened by any wall. Therefore, that P.W.8 could be a natural eye-witness to the incident cannot be doubted. P.W.9 Sanjay Baidya, while he was coming home from the field found many persons in the house of P.W.2 and in his presence the appellant suddenly took out his revolver and fired at him. 8. Evidence of P.W.1, P.W.2 and P.W.3 are alone sufficient to assess the fact-in-issue. The appellant and his companions came to the house of P.W.2 at 10 a.m. on 17.11.2001 when P.W.2 was not at home. P.W.1 asked the appellant and his men to sit in the verandah. 8. Evidence of P.W.1, P.W.2 and P.W.3 are alone sufficient to assess the fact-in-issue. The appellant and his companions came to the house of P.W.2 at 10 a.m. on 17.11.2001 when P.W.2 was not at home. P.W.1 asked the appellant and his men to sit in the verandah. When shortly thereafter P.W.2 came and asked the appellant for the purpose of visit the appellant took out revolver and fired against P.W.2 which instead of killing P.W.2 hit against the wall and thus P.W.2 narrowly escaped. This is the crude fact which has been testified to by P.W.1, P.W.2 and P.W.3 who are the eye-witnesses to the incident and supported by P.W.7, P.W.8 and P.W.9 and others. No amount of cross-examination of any of the above witnesses could demolish the fact that it was the appellant who fired against P.W.2 in the varandah of the house of P.W.2 but instead of killing P.W.2 by the fire-arm it hit against the wall. P.W.10 seized an empty cartridge from the verandah of P.W.2s house against a seizure list (Ext.2) which shows seizure of empty cartridge of 8 m.m., some amount of blood, a cigarette packet stained with blood, small amount of black hair from the verandah of the house of P.W.2. P.W.1, P.W.2, P.W.3, P.W.6, P.W.7, P.W.8 and other witnesses have said that the bullet hit against the wall. Existence of seizure of empty cartridge is supportive of the evidence of P.W.2 and others to the effect that it was the appellant who fired from his revolver which fortunately missed the target and hit against the wall. If the bullet had hit against P.W.2 there could be no denying the fact that P.W.2 would have succumbed to the injuries. Mrs. Rupna Bhattacharjee, learned Advocate for the appellant submitted that empty cartridge was not sent to the ballistic expert for opinion. True it was not sent, but non-examination of the cartridge by ballistic expert has not the effect of demolishing the prosecution case because firing from revolver by the appellant while in the verandah of P.W.2s house, bullet hitting against the wall, and recovery of bullet from the verandah itself are matters of fact. In Awadesh & Anr. vs. State of Madhya Pradesh, AIR 1988 SC 1158 , relied on by Mrs. In Awadesh & Anr. vs. State of Madhya Pradesh, AIR 1988 SC 1158 , relied on by Mrs. Bhattacharjee on this point the facts were different in this that in the case reported the seizure of empty cartridges was delayed and was not supported by the prosecution witnesses and there was mutual exchange of firing. All these adverse facts are not present in the instant case. 9. Mrs. Rupna Bhattacharjee (Roy), learned Advocate for the appellant submitted that the learned Trial Court committed gross irregularity in not holding trial of Gaighata P.S. Case No. 169 of 2001 relating to the death of four persons in view of the fact that it is the settled principle of law that the case and the counter-case should be heard simultaneously by one and the self-same Court for better appreciation of evidence in each of the cases. It appears from the records of the proceedings of the learned Trial Court that the attention of the learned Trial Court was not drawn at any point of time to this aspect of the matter nor was it brought to the notice of the Court as to the stage where the other case in Gaighata P.S. Case No. 169/2001 had reached. Secondly, each case has to be judged with reference to the facts, circumstances and evidence on record of that case. It is not the defence case through suggestion to any of the witnesses that in the instant case P.W.2 was an aggressor having killed four people at the first instance and then to retaliate against killing the appellant fired from his revolver in the verandah. In evidence we fail to find that lynching of four persons belonging to the group of the appellant was preceded by and anterior in time to firing against P.W.2 in his house through revolver by the appellant. Thus lynching of four people was consequence to the firing in the house of P.W.2 by the appellant and not the converse. Were it the converse, defence was not precluded in the Trial Court from making reference to the FIR of their case so as to contradict the case of the prosecution. 10. It was argued by Mrs. Bhattacharjee that on the part of the appellant there was no intention to kill because only one empty cartridge was recovered. Were it the converse, defence was not precluded in the Trial Court from making reference to the FIR of their case so as to contradict the case of the prosecution. 10. It was argued by Mrs. Bhattacharjee that on the part of the appellant there was no intention to kill because only one empty cartridge was recovered. It cannot be gainsaid that one cartridge was sufficient to cause death and firing by revolver in the house of P.W.2 clearly establishes intention to kill and attempt to commit murder was complete by such firing. It was argued by Mrs. Bhattacharjee further that the victims of the counter case were not examined. The argument is not impressive because it is not clear as to who remained as victims in the other case after death of four people, and, moreover, occurrence in the instant case had taken place in the verandah of the house of P.W.2 and the people who fled away were not necessarily the witnesses to testify to the fact-in-issue. Mrs. Bhattacharjee further submitted that if the appellant had really any intention to kill P.W.2 he would not have fired against the wall, and damage of the wall implies that the bullet was not aimed at P.W.2. In this connection she relied on Parsuram Pandey & Ors. vs. State of Bihar, 2005 SCC (Cri) 113. In the case cited there was indiscriminate firing from guns, yet there were simple injuries to some villagers and the Supreme Court negatived the charge under section 307 IPC. In the reported case firing was made in the open area, while in the instant case firing was made inside the house of P.W.2. We are unimpressed by the argument because evidence discloses that no sooner had P.W.2 asked the appellant and his men for the purpose of their visit than the appellant took out revolver and fired without responding to any query of P.W.2. In the conspectus of this circumstance it cannot be argued that the purpose of the visit of the appellant was simply to threaten him by a false firing against a wall. The simple thing remaining established convincingly is that in the verandah of the house of P.W.2 the appellant fired against P.W.2 but the target missed and immediately thereafter the appellant and another fled away while four miscreants were attacked by furious mob and lynched to death. The simple thing remaining established convincingly is that in the verandah of the house of P.W.2 the appellant fired against P.W.2 but the target missed and immediately thereafter the appellant and another fled away while four miscreants were attacked by furious mob and lynched to death. Learned Trial Court has rightly reasoned that from a cumulative reading and evaluation of the evidence it appears that the appellant and his companions had been to the house of P.W.2 and with a view to killing P.W.2 the appellant fired and beating of four persons to death is a consequence of all the members of the public becoming furious. 11. It was argued that P.W.1, P.W.2 and P.W.3 are interested witnesses and their evidence should be discarded. We are unable to agree. Since attack was made in the house of P.W.2 it was P.W.1, P.W.2 and P.W.3 who were the best and proper witnesses and having considered the place of occurrence there could not have been better witness than these witnesses and merely because they are related to one another is no ground for rejection of the testimonies. Furthermore, their evidence has been convincingly corroborated by their neighbours. 12. Argument was advanced that in the FIR the appellant was not named and accordingly entanglement of the appellant is an afterthought. The argument is not sustainable firstly because it is necessary to consider as to under what circumstances the FIR was lodged. FIR was lodged by P.W.1 who is a housewife and semi-literate person and in the circumstance when there was mob fury resulting in death of four people by the side of the house of P.W.2 it is unexpected of P.W.1 to give the first and last word of the prosecution case. If the FIR had been lodged by P.W.2 without mentioning the name of the appellant then the argument would have been a sensible one. Moreover, it was P.W.2 who was targetted by the appellant in the verandah of his house and it cannot be said that P.W.2 would implicate a false person leaving aside the actual culprit. Further the consistent evidence of all the important witnesses are that the appellant fired against P.W.2 but the target was missed and it is not for the first time that the witnesses have said so in their evidence in the Court. Further the consistent evidence of all the important witnesses are that the appellant fired against P.W.2 but the target was missed and it is not for the first time that the witnesses have said so in their evidence in the Court. It could not be the defence argument that before the I.O. it was not stated by the witnesses that it was the appellant who fired from his revolver. Revolver could not be seized by the I.O. because of the appellant fleeing away from the scene of the crime. Having considered the totality of evidence we find no reason to give benefit of doubt in favour of the appellant. Mrs. Bhattacharjee while attacking evidence of P.W.1 refers to the decision in Anmol Singh vs. Asharfi Ram & Ors., 1998 SCC (Cri) 369, to buttress her point that improvement was made by P.W.1 in her evidence upon the FIR wherein the appellant was not named. We have in details traversed the point, and it is enough to note that the facts in the case reported do not match ours as in that case the FIR-maker was the only eye-witness. 13. In the result, the appeal fails. As regards sentence, we in the circumstances of the case do not think that the sentence was not proportionate to the gravity of the crime. We dismiss the appeal and confirm the judgment and order of the learned Trial Court. The appellant shall surrender to the learned Trial Court within a month from the date of this judgment failing which the learned Trial Court will take appropriate steps for his apprehension in order to have the sentence executed. Bail bonds of the appellant stand cancelled. 14. The Criminal Section is directed to send a copy of this judgment along with the L C R to the learned Trial Court at once. I agree. Appeal fails.