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2007 DIGILAW 758 (CAL)

Raju Lahiri v. STATE OF WEST BENGAL

2007-09-26

GIRISH CHANDRA GUPTA, KISHORE KUMAR PRASAD

body2007
JUDGMENT Girish Chandra Gupta, J. 1. This appeal is directed against a judgment and order dated 10th January, 1997 and 13th January, 1997 respectively passed by the learned Additional Sessions Judge, Raiganj, Uttar Dinajpur in Sessions Case No. 52 of 1995 convicting and sentencing the appellants under section 326/307 read with section 34 of the Indian Penal Code and under sections 25(1-A)/27(2) of the Arms Act. 2. The case of the prosecution briefly stated is as follows: On 21st January, 1995 at about 7.15 p.m. in the evening Shri Bholanath Ghosh was shot at by Raj Lahiri and Shasti Devsharma. The victim was admitted in the Raiganj Hospital. He was shifted to North Bengal Medical Hospital at Siliguri in the same night and was ultimately on 25th February, 1995 taken to Apollo Hospital at Madras where the bullet was removed from the victim's body. 3. Mr. Bag, learned Senior Advocate appearing for the appellants submitted that there is no evidence far less satisfactory evidence to connect the appellants with the alleged crime. He submitted that the judgment is perverse and should be set aside. 4. Considering the submission of Mr. Bag we have to find out whether the prosecution has been able the bring home the charges against the appellants. 5. PW.1 Manoranjan Ghosh, elder brother of the victim, deposed that on 21st January, 1995, at about 7.15 p.m. in the evening while he was at home he heard a sound of firing. He also heard the sound of groaning by the victim. He came out of his house and found his brother Bhola in front of the shop of Prangopal Sarkar profusely bleeding. According to him the victim disclosed that he was shot at by Raju and another. He took the victim to Raiganj Hospital and got him admitted therein. He thereafter went to the police station and lodged the written complaint which is marked Exhibit 1'. The FIR drawn at the police station goes to show that the written complaint was received at 7.50 p.m. on 21st January, 1995. The victim, according to PW.1, remained at Raiganj Hospital for about 3/3½ hours. He was thereafter removed to North Bengal Medical Hospital at Siliguri. The blood-stained shirt/gangee and sweater containing mark of perforation were seized by the police which have been marked Material Exhibits I, II and III respectively. The victim, according to PW.1, remained at Raiganj Hospital for about 3/3½ hours. He was thereafter removed to North Bengal Medical Hospital at Siliguri. The blood-stained shirt/gangee and sweater containing mark of perforation were seized by the police which have been marked Material Exhibits I, II and III respectively. PW.2 Arobinda Chakraborty attached to Raiganj Sadar Hospital deposed that he found a circular wound on the left lower thoracic region from the back. According to him considering the critical condition of the patient, he found no time to make enquiry as to the history of the injury or name of the assailants. According to PW.3 Madhusadan at about 8 p.m. he came to know that Bhola had been shot at by somebody and that Bhola was lying in the hospital. He claims to have visited the victim at hospital where the victim, according to him, told that he had been shot at by Raju and Shasti. PW.4 Prangopal Sarkar, a grocer, deposed that the victim came running and fell down near his shop. PW.4 rushed to the victim. So did the customers of his shop. According to him Bhola told him the names of the assailants. They were Raju and another whose name he was unable to recollect. In his cross-examination he deposed that he did not see who had actually fired Bhola. PW.5 Narayan deposed that hearing the hue and cry he rushed to the spot and found Bhola lying on the brick soling road and PW.1 by his side. Bhola, according to him, was shouting that a bomb had been charged. But he did not disclose the names of the person who had charged the bomb. PW.5 was declared hostile. He was cross-examined but no significant information could be elicited from him. PW.10 Dr. Pravas Kumar Sarkar attached to North Bengal Medical Hospital deposed that the patient was admitted in a critical condition. He was operated upon but the bullet could not be removed. He has proved Exhibit 12' containing his handwriting. Exhibit 12' contains the following history: "Patient was hit by a bullet by an unknown person at 7.15 p.m. on 21st January, 1995. Bullet retained inside as disclosed by the party." As regards the aforesaid history appearing in Exhibit 12' PW.10 deposed as follows: "In Exhibit 12' it is mentioned that the patient was hit by bullet by an unknown person. Bullet retained inside as disclosed by the party." As regards the aforesaid history appearing in Exhibit 12' PW.10 deposed as follows: "In Exhibit 12' it is mentioned that the patient was hit by bullet by an unknown person. It was recorded by an internee but not by me." 6. We already have noticed that the victim was kept at Raiganj Hospital for about 3/3th hours. He was thereafter removed to North Bengal Medical College and Hospital at Siliguri. Evidence of PW.10 is that the victim reported in the emergency of North Bengal Medical College and Hospital at Siliguri on 22nd January, 1995 at 3.45 a.m. At that stage Exhibit 12' originated. We, therefore, have dependable evidence to show that upto 3.45 a.m. on 22nd January, 1995 the names of the assailants were not divulged to anyone by the victim. Exhibit 12' contains the history of the case recorded on the basis of the report of the party. The 'party' in this case is the PW.1 Manoranjan Ghosh who took his younger brother, the victim, to North Bengal Medical College and Hospital at Siliguri. He did not know who the assailants were until the time when the Exhibit 12' was recorded. We, therefore, have no doubt in our mind that the evidence given by PWs.1, 3 and 4 implicating the appellants or anyone of them is anything but true. Each of these witnesses claim to have disclosed the names of the assailants on the basis of the information supplied to them by the victim. We shall see a little later that the victim himself was unaware as to the actual position. 7. The written complaint appearing to have been lodged with the concerned police station at 7.50 p.m. disclosing the names of the assailants as Raj Lahiri and another is nothing more than guesswork. The written complaint and the form FIR drawn at the police station loose the credibility further from the fact that the FIR was produced to the learned Magistrate for the first time on 25th January, 1995 although the same appears to have been despatched on 22nd January, 1995 at 8 hours. 8. Mr. Bag, learned Senior Advocate relying on the judgment in the case of Iswar Singh vs. State of U.P., reported in AIR 1976 SC 2423 , submitted that the entire case is a concoction. 8. Mr. Bag, learned Senior Advocate relying on the judgment in the case of Iswar Singh vs. State of U.P., reported in AIR 1976 SC 2423 , submitted that the entire case is a concoction. Their Lordships expressed the following views: "The extraordinary delay in sending the FIR is a circumstance which provided legitimate basis for suspecting that the First Information Report was recorded much later that the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when the case made in Court differs, at least in two very important particulars from that narrated in the FIR. In such a case, the evidence of the eye-witnesses 'cannot be accepted at its face value.' AIR 1976 SC 1156 , Rel. on." 9. Mr. Goswami, learned P.P. on the other hand submitted that mere delay in sending the information to the Magistrate is not enough to discard an otherwise positive and trustworthy evidence on the record. He relied on the judgment in the case of A.N. Venkatesh vs. State of Karnataka, reported in 2005 SCC (Criminal) 1938. He also relied on the judgment in the case of Sahdeo & Ors. Vs. State of U.P., reported in 2004 SCC (Criminal) 1873, wherein an identical argument was turned down on the following basis: "The Counsel for the appellants seriously contended that the First Information Report was received by the Magistrate only on 18.1.2000 and the prosecution did not explain the six days' delay in sending the FIR to the Court. It is important to note that the Investigating Officer was not asked to explain how the delay occurred in sending the FIR to the Magistrate. The Counsel further contended that the FIR must have been concocted later after the inquest and post-mortem examinations were over. It was submitted that the delay in sending the FIR to the Magistrate enabled the prosecution to cook up a false case against the appellants. We are not inclined to accept this contention for the reason that the FI statement contains only a brief statement of events. If the FIR had been prepared later after the inquest and post-mortem were over, many more matters could have been incorporated in the FIR. We are not inclined to accept this contention for the reason that the FI statement contains only a brief statement of events. If the FIR had been prepared later after the inquest and post-mortem were over, many more matters could have been incorporated in the FIR. The absence of any further details in the FIR shows its genuineness and the delay probably would have happened due to some other reason, which the Investigating Officer was not given any opportunity to explain. Lastly, the Counsel for the appellants submitted that either PW.1 or PW. 2 could not give any evidence as to which appellant caused the death of which deceased and the absence of evidence regarding the overt acts allegedly made by these appellants showed that many of these appellants were not party to the unlawful assembly. This plea also cannot be accepted. The Trial Court as well as the High Court convicted those accused persons who were armed with fire-arms. There were no other injuries found on the dead bodies of the deceased persons having either been caused by a lathi or other blunt weapon. Therefore, those who were allegedly armed with lathis were acquitted by the Sessions Court and their acquittal was confirmed by the High Court. As regards the nature of the unlawful assembly there is clear evidence to the effect that all of them came in a group by using cars and a motor-cycle and intercepted the bus. Knowing fully well that the deceased persons were travelling in that bus the appellants entered the bus and without giving any opportunity to the deceased persons to escape from the bus killed them on the spot. The common object of the unlawful assembly is clearly spelt out from the nature and circumstances of the evidence." 10. We have considered the rival submissions made by the learned Advocates. We are of the view that delay simpliciter in sending the FIR to the Magistrate may be treated as a lapse on the part of the investigating agency and in that case Court has to be circumspect. If any authority is needed for this proposition reference may be made to the judgment in the case of Karnel Singh vs. State of M.P., reported in 1995(5) SCC 518 . 11. Even in the case of A.N. Venkatesh & Anr. Their Lordships opined that:- "While it is true that that section 157 Cr. If any authority is needed for this proposition reference may be made to the judgment in the case of Karnel Singh vs. State of M.P., reported in 1995(5) SCC 518 . 11. Even in the case of A.N. Venkatesh & Anr. Their Lordships opined that:- "While it is true that that section 157 Cr. PC makes it obligatory on the Officer-in-Charge of the police station to send the information to the Magistrate's Court forthwith but, that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record." 12. If the evidence on record is positive. and trustworthy a mere lapse on the part of the investigating agency such as violation of section 157 or delayed compliance thereof may not justify an overthrowal of the prosecution case but that unfortunately is not the position here. Exhibit 12' goes to establish that until morning of 22nd January, 1995 even PW.1 did not know who the assailants were. Therefore the FIR appearing to have been lodged at 7.50 p.m. on 21st January, 1995 disclosing the names of Raju and another cannot be true. It is in this perspective that we view this FIR with suspicion and the suspicion is hardened when we find that the FIR was produced before the learned Magistrate only on 25th January that is to say almost three days after when it ought to have reached the learned Magistrate. For the aforesaid reasons we are of the view that the evidence of the witnesses so far discussed is of no assistance for the purpose of holding the appellants guilty. 13. The only other evidence which is required to be considered is that of the victim himself. We already have discussed that the victim was taken to Madras where the bullet was removed. PW.8 Dr. Basudevan produced the bullet which was extracted from the body of the victim which was marked Exhibit 4'. Dr. Shesadri, PW.9 deposed that after extracting the bullet he handed over the same to the attending assistants to preserve the same. The victim (PW.7) deposed as follows:- "There is a brick soling road in front of my house leads to the NH-34. I found that Raju Lahiri and Sasthi Debsarma were standing on the said brick road and were gossiping. Both of them were standing on both sides of the pathway. The victim (PW.7) deposed as follows:- "There is a brick soling road in front of my house leads to the NH-34. I found that Raju Lahiri and Sasthi Debsarma were standing on the said brick road and were gossiping. Both of them were standing on both sides of the pathway. I crossed them, and then and there I received a gun-shot from the back side on the back of my chest. One of those two persons fired at me. At that time there was no other persons on that pathway. After making the gunshot both of them fled away. After receiving the injury by gunshot I fell on the road in front of the grocery shop whom I know as Dadu, which situates at the west at the junction of the brick soling road which is to the north of NH-34." 14. PW.7 by the expression 'dadu' meant the PW.4. PW.4 we already have noticed deposed that he did not see who the actual assailants were. Evidence of PW.7 is that he got the gunshot from the back side. He, therefore, did not have the occasion to see who actually had fired at him. He had seen the appellants standing on by the side of the road. According to him there was no other person on the road. He concluded that one of these two persons had fired at him. The charge we already have noticed is under sections 326 and 307 read with section 34 of IPC. Common intention of the appellants has not been proved in this case. There is, as a matter of fact, no evidence to show any common intention. 15. Mr. Goswami submitted that Raju must be held to have fired the victim. 16. We are unable to accept the submission of Mr. Goswami because the victim the only witness deposed that 'one of those two persons fired at me.' It is, therefore, not possible to conclude with any amount of reasonable certainty that "Raju had fired at the victim. Mr. Goswami submitted that Raju must be held to have fired the victim. 16. We are unable to accept the submission of Mr. Goswami because the victim the only witness deposed that 'one of those two persons fired at me.' It is, therefore, not possible to conclude with any amount of reasonable certainty that "Raju had fired at the victim. The learned Trial Judge has advanced the following reason for the purpose of holding the appellants guilty:- "When there is no eye-witness to see actually who out of the two accused made the gunshot at Bholanath Ghosh, but the fact remains that Bhola Ghosh stated that just when he crossed the accused persons he received the shot at the back and both the accused fled away and he fell on the ground with injury with a groaning sound. So when both of them were present there, there was an enmity between the parties and just after the firing, both of them fled away, so in my considered opinion section 34 IPC is attracted in the instant case in hand. It was not the intention of the legislature that the victim who was assaulted from his back side by a gunshot though stated the names of the persons who made that strike, the miscreants will be get rid of and let free from the charge of such assault. When the circumstances go to show that one of them must made the gunshot and they had prior meeting of mind to take revenge for nonpayment of subscription to enjoy the Biswakarma Puja last year, both of them in my opinion are liable for the offence as levelled against them.' 17. The learned Trial Judge appears to have .attached great importance to the quarrel between the victim and the accused persons which is alleged to have taken place in the year 1994 for non-payment of subscription of Viswakarma Puja but he did not notice the fact that in his cross-examination PW.7 admitted that the matter was not reported to the police although, in his cross-examination, the degree of quarrel was further heightened by including an alleged assault on the victim for non-payment of subscription of Viswakarma Puja. The learned Trial Judge in our view over emphasised the alleged quarrel for which there is no definite evidence. He held on the basis of the alleged quarrel that common intention under section 34 was proved. The learned Trial Judge in our view over emphasised the alleged quarrel for which there is no definite evidence. He held on the basis of the alleged quarrel that common intention under section 34 was proved. 18. We are unable to accept this reasoning. He convicted both the appellants when the evidence of PW.7 in his cross-examination is that "But I could not say who fired the gunshot'. Where there is uncertainty of this nature conviction could not have been given. Reference in this regard may be made to the judgment in the case of Ram Nath vs. State of M.P., reported in AIR 1953 SC 420 , wherein the following view was expressed: "No act or conduct on the part of the accused has been proved from which an inference of a prearranged plan to murder Sunder could be raised. Even if it is held proved that all the appellants were seen at that spot at the time of firing; this fact by itself could not be held enough to prove a common intention of the appellants to murder Sunder. It can well be that these four persons were standing together and one of them suddenly seeing Sunder fired at him. This possibility has not been eliminated by any evidence on the record. In such a situation when it would not be known who fired the fatal shot, none of such persons could be convicted of murder under section 302 IPC. It seems to us that in this case the High Court failed to appreciate the true erect of the decision of the Privy Council in 'Mahbub Shah Vs. Emperor, AIR 1945 PC 118 (A), and its judgment in regard to the applicability of section 34, IPC has to be reversed." 19. In the facts of this case we are of the view that the order under challenge convicting the appellants cannot be sustained. The appeal accordingly succeeds. The appellants are acquitted of all the charges levelled against them. They should be released forthwith. 20. Lower Court Records with a copy of this judgment to go down forthwith to the learned Trial Court for information and necessary action. 21. Urgent xerox certified copy of this judgment be delivered to the learned Advocates for the parties, if applied for upon compliance of all formalities. I agree. Appeal succeeds.