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2008 DIGILAW 544 (CAL)

Subrata Roy v. STATE OF WEST BENGAL

2008-05-15

G.C.GUPTA, KISHORE KUMAR PRASAD

body2008
Judgment :- (1.) THESE appeals are directed against a judgment dated 23rd June, 2005, passed by the Additional Sessions Judge, Fast Track court-IV, Alipore, South 24-Parganas, in Sessions Trial No. 8 (6) 04 arising out of Sessions Case No. 58 (11) 02 convicting the appellants under Section 302 of the Indian Penal Code read with Section 34 of the I. P. C. and an order dated 24th June, 2005, by which the convicts Ranjit Mondal, Subrata roy @ Ditu, Jalodhar Mondal @ Jalo and Bishu Barua were sentenced to imprisonment for life. All the four convicts together preferred an appeal which has been registered as C. R. A. 536 of 2005. The third appellant, jalodhar Mondal, was granted bail by an order dated 14th December, 2005. On 11th September, 2006, a Division Bench of this Court decided to recall the order dated 14th December, 2005, and for that purpose directed the matter to be listed on 13th September, 2006. When the matter was listed on 13th Septemebr, 2006, it was submitted on behalf of the appellants, that the said Jalodhar Mondal had passed away. On 25th September, 2006, the division Bench of this Court passed an order on the basis of a report furnished by the learned Chief Judicial Magistrate, Alipore, that the appeal, in so far as the third appellant, Jalodhar Mondal, was concerned had abated in view of the fact that he had died. The fourth appellant, Bishu Barua, it appears, filed an independent appeal subsequently which has been registered as C. R. A. 429 of 2006. There are, thus, two appeals which have come up for hearing. (2.) BRIEFLY stated the case of the prosecution is that on 20th November, 2001, around 12.00 hours Dilip Shaw was shot dead by the appellants and one Munna Tewari. Charge-sheet was filed against the five accused persons. The said Munna Tewari was absconding. The case as against Munna Tewari was, as such, filed for the present, and the rest of the four accused persons were proceeded against. They were charge-sheeted under Section 302 of the Indian Penal Code read with Section 34 thereof. The prosecution has examined fifteen witnesses. The de facto complainant, Rahamat AH Sardar, who had notified the incident to the police on the basis whereof the case was started, turned hostile at the trial. They were charge-sheeted under Section 302 of the Indian Penal Code read with Section 34 thereof. The prosecution has examined fifteen witnesses. The de facto complainant, Rahamat AH Sardar, who had notified the incident to the police on the basis whereof the case was started, turned hostile at the trial. Similarly, the P. W. 2, Chhaya Pal, and P. W. 3, Goutam Das, both residents of the locality where the incident took place, also turned hostile at the trial. The conviction is based principally on the evidence of the P. W. 7, Puspa Shaw, the widow of the victim, P. W. 9, Santosh Prosad Shaw, brother-in-law of the victim, P. W. 12, Usha Devi, a relation of the victim, P. W. 13, Monoj Kumar Shaw, another relation of the victim, P. W. 4, Dr. Prity Koley, who attended the victim at Vidyasagar hospital when he was shifted at about 12. 40 hours on 20th November, 2001, the Autopsy Surgeon, P. W. 14, and the Investigating Officer, p. W. 15. (3.) P. W. 9, Santosh Prosad Shaw, brother-in-law of the deceased, deposed that "there was long standing dispute in between my brother-in-law and Jalo Mondal and Ors." He further deposed in this regard that" I lodged 30/35 diaries at the P. S. with regard to the offence committed by Jalo mondal. "In his cross-examination he also deposed as follows :-Prior to my deposition on this day I have stated these facts to the addl. S. P. and Panchayet Pradhan in writing. " (4.) P. W. 15, Tirthankar Ghosh, the Investigating Officer, corroborated the evidence of the P. W. 9. His deposition in this regard is as follows :-" The accused persons used to torture the deceased Dilip Shaw in several occasions and I collected some xerox copies of documents regarding allegations of such torture. " (5.) P. W. 9, Santosh Prosad Shaw, also deposed that "jalo Mondal threatened Dilip Shaw with revolver in my presence." (6.) THIS part of the evidence of the P. W. 9 had remained uncontradicted during the cross-examination. (7.) P. W. 9 further further deposed as follows :-" Jalo Mondal also raped my elder sister, Pushpa Shaw. Jalo mondal also assaulted Dilip Shaw on the date of Dolyatra. (7.) P. W. 9 further further deposed as follows :-" Jalo Mondal also raped my elder sister, Pushpa Shaw. Jalo mondal also assaulted Dilip Shaw on the date of Dolyatra. " (8.) THE evidence of the P. W. 9 that his sister, wife of the deceased, had been raped by the accused, Jalo Mondal, has been corroborated by the evidence of the P. W. 7, Puspa Shaw. She deposed that "one Jalo mondal raped me and I filed a case against him. " That case is still pending. (9.) THIS part of the evidence has remained unshaken. (10.) MR. Mukherjee, the learned Counsel, appearing for the appellants, submitted that the evidence of the P. W. 9 that the accused Jalo mondal had assaulted Dilip Shaw on the date of Dolyatra was not disclosed by the P. W. 9 during his examination under Section 161 of the Code of criminal Procedure to the Investigating Officer. (11.) WE are inclined to think that this is a matter of detail and this does not weaken the evidence of the P. W. 9. (12.) P. WS. 12 and 13 are eye-witnesses. P. W. 12, Usha Devi, a relation of the deceased, deposed as follows :-I knew Dilip Shaw. He died on 20. 11. 01 at 12.00 noon at Nabapally Road. On the date, time of occurrence I was proceeding to invite Dilip Shaw through the Nabapally Road. Manoj Shaw, brother of Dilip Shaw was along with me. Dilip Shaw was proceeding along the Nabapally Road prior to us. Jalo, Bishu came out from a newly constructed house. The said newly constructed house situated near a hardware shop. Bishu and Jalo are present in Court on dock and identified. This witness identified Jalo. This witness fails to identify Bishu. The accused persons were 5 in number. Out of the said persons, 4 accused persons are present on dock. Accused Bishu, Jalo and another person stopped the cycle of dilip Shaw. Thereafter, another 2 persons came there. There were two revolvers in their hand,s. Ranjit and Ditu fired in the head and body of Dilip Shaw by their firearms. After firing they fled away. I started to shout by saying save and save. Para people assembled there. I narrated the incident to the para people and I also told the para people to inform my sister. There were two revolvers in their hand,s. Ranjit and Ditu fired in the head and body of Dilip Shaw by their firearms. After firing they fled away. I started to shout by saying save and save. Para people assembled there. I narrated the incident to the para people and I also told the para people to inform my sister. Manoj Shaw stopped an auto-rickshaw and Dilip Shaw was removed to Vidyasagar Hospital by the said auto-rickshaw. Myself and Manoj Shaw went to Hospital along with Dilip Shaw. " (13.) P. W. 13, Monoj Kumar Shaw, brother of the deceased, deposed as follows :-Dilip Shaw since deceased was my second full brother. He was murdered on 20.11.2001. He died on Nabapally Road under P.S. Thakurpukur at 12 noon. Myself and Usha Devi was going to invite Dilip Shaw and his wife for chat Puja ceremony. Dilip Shaw was going towards his house. Myself and Usha Devi were also going behind Dilip Shaw, 3 persons stopped the cycle of Dilip Shaw and two persons fired by firearm at Dilip Shaw. Ranjit and Bishu fired towards Dilip Shaw and Ditu, Jalo and another boy stopped the cycle of Dilip Shaw. All the 4 accused persons whose names I have stated are present in Court on dock and identified. After firing they fled away. We shouted and para people assembled there. I stated to one boy to inform my Bhabi about the incident. My bhabi came there and one auto-rickshaw came there and we removed Dilip Shaw by auto-rickshaw to the hospital. On examination of my brother, Dilip Shaw, Doctor told that he has expired. " (14.) ASSAILING the evidence of the P. Ws. 12 and 13, Mr. Mukherjee, the learned Counsel, appearing in support of the appeals, submitted that the description of the incident given by these two eye-witnesses is inconsistent. According to the evidence of the P. W. 12, Ranjit and Ditu, also known as Subroto, opened the fire whereas according to the P. W. 13, ranjit and Bishu opened the fire. Mr. Mukherjee submitted that on the basis of contradictory evidence, conviction cannot be sustained. (15.) THE next submission advanced by Mr. Mukherjee, the learned counsel, for the appellants, assailing the evidence of these two witnesses, was that the victim was shifted to Vidyasagar Hospital, which is a government hospital. The P. W. 4, Dr. Koley, examined the victim at 12. Mr. Mukherjee submitted that on the basis of contradictory evidence, conviction cannot be sustained. (15.) THE next submission advanced by Mr. Mukherjee, the learned counsel, for the appellants, assailing the evidence of these two witnesses, was that the victim was shifted to Vidyasagar Hospital, which is a government hospital. The P. W. 4, Dr. Koley, examined the victim at 12. 40 hours on 20th November, 2001, in the Emergency Department, and the report prepared by him has been marked Exhibit 2. The P. W. 4, Dr. Koley, also deposed that the victim was brought by Pushpa Shaw. According to the evidence of P. Ws. 12 and 13, they had also accompanied the victim, but the names of the assailants are conspicuous by their absence from the injury report marked Exhibit 2. Mr. Mukherjee contended that Vidyasagar hospital is a government hospital. The system usually followed in the government hospital is to record the history of the case. But in the present case, no history appears to have been recorded. It is true that history of the case was not recorded by the P. W. 4. From the injury report it appears that the patient was brought dead to the Emergency Department of the said hospital. That may be one of the reasons why no history of the case was recorded. The injury report marked Exhibit 2 is on a printed form. Column (7) pertains to date, time and place of receipt of injury. Column (10) pertains to short history of the case stated by the patient. Column (14) pertains to valuable of the patient and column (15) pertains to nature of the injury. (16.) THE P. W. 4 was cross-examined as to why did he not fill up columns (7), (14) and (15), but no question was asked to the witness as to why did he not fill up column (10) which pertains to history of the case stated by the patient. (17.) WE are of the view that since the column as regards history of the case itself indicates that the history disclosed by the patient has to be recorded. Since the patient was brought dead, the doctor did not record the history, and that answers the question raised by Mr. Mukherjee. The submission advanced by Mr. Mukherjee, the learned Counsel for the appellants, assailing the evidence of P. Ws. Since the patient was brought dead, the doctor did not record the history, and that answers the question raised by Mr. Mukherjee. The submission advanced by Mr. Mukherjee, the learned Counsel for the appellants, assailing the evidence of P. Ws. 12 and 13 that their evidence is inconsistent as regards the persons who had actually fired at the victim is factually correct which has to be considered in its proper perspective. (18.) THE P. W. 14, the autopsy surgeon, deposed that he found as many as three injuries and one of them was a gun shot wound. Death, in his opinion, was due to the effect of gun shot injury, ante mortem and homicidal in nature. He further opined that the victim might have been shot from a close range. The evidence of P. W. 14 corroborates the evidence of p. Ws. 12 and 13 that the victim was surrounded and shot. The cross-examination of the autopsy surgeon, on behalf of the defence, was declined. (19.) MR. Mukherjee, the learned Counsel, for the appellants, drew our attention to that part of the evidence of P. W. 14, the autopsy surgeon, where he deposed that a metallic foreign body lodged under the skin of the victim was removed and preserved. Mr. Mukherjee contended that the P. W. 15, the I. O., obviously referred to the bullet which the prosecution failed to produce before the Court. (20.) THE P. W. 15, Tirthankar Ghosh, the investigating officer, deposed inter alia as follows :- " I recovered one country made fire arm and one bullet as per the statement of accused Subrata Roy @ Ditu Rodrix and accused. Ranjit mondal. These are the two statements made by accused Subrata roy @ Ditu Rodrix and accused Ranjit Mondal. The said two statements are marked Exhibits 7 and 7/1. I sent the said bullet and fire arm to Forensic Science Laboratory for their examination. I collected the reports. " (21.) THE evidence of the P. W. 15, quoted above, goes to show that on the basis of the disclosure made by the accused Ditu, also known as subrata Roy, and Ranjit Mondal, a fire-arm and a bullet was recovered which was sent to Forensic Science Laboratory and he had also collected the report. The P. W. 15 did not talk about any bullet extracted from the body of the deceased as erroneously contended by Mr. Mukherjee. The P. W. 15 did not talk about any bullet extracted from the body of the deceased as erroneously contended by Mr. Mukherjee. The prosecution, however, has not exhibited any seizure list. (22.) IN his cross-examination the P. W. 15 deposed that "we do not prepare seizure list on all occasions while the properties are produced before us. " (23.) MR. Mukherjee, the learned Counsel, for the appellants, submitted that neither the fire-arm nor the bullet allegedly recovered and seized pursuant to the statement allegedly made by two of the accused persons was produced in Court. There is no seizure list nor is the Forensic Science laboratory report exhibited. He, accordingly, submitted that the prosecution has not proved its case and his clients are entitled to an outright acquittal. (24.) MR. Dutta, the learned Counsel, appearing for the State, submitted that these are the lapses on the part of the Investigating Agency for which a well-founded case cannot be thrown over board. There is no suggestion given to the P. W. 15 that a fire-arm and a bullet were not recovered on the basis of the information furnished by two of the accused persons. The disclosure made by the accused persons has been reduced to writing and marked Exhibits 7 and 7/1. Mr. Dutta added that merely on the basis of technicalities, the accused persons are seeking to go scot-free after committing such a heinous crime in broad day light which should not be allowed. (25.) WE have checked up the records of the lower Court. The lower court records do, in fact, contain the Forensic Science Laboratorys report. It must be sheer carelessness on the part of the Investigating Agency as also on the part of the learned Advocate, who was conducting the case, on behalf of the prosecution, that the same was not marked as an exhibit. Considering the fact that there is no suggestion to the P. W. 15 that no such fire-arm, including a bullet, was recovered, we are inclined to think that the recovery of the fire-arm, including a bullet, is not in dispute. The disclosure statement made by the accused, Subrata Roy @ Ditu and Ranjit Mondal, was reduced to writing and marked as Exhibits 7 and 7/1. The disclosure statement made by the accused, Subrata Roy @ Ditu and Ranjit Mondal, was reduced to writing and marked as Exhibits 7 and 7/1. There is, thus, evidence to hold that on the basis of the disclosure made by these two accused persons, the offending fire-arm including a bullet, were recovered. We cannot, however, take into consideration the Forensic Science laboratorys report which is already on the record. (26.) MR. Mukherjee, the learned Counsel, appearing for the appellants, contended that the presence of the P. Ws. 12 and 13 at the place of occurrence has not been corroborated by any of the witnesses. (27.) BOTH the P. Ws. 12 and 13 deposed that after the victim was shot, they requested the para people to inform the P. W. 7, Puspa Shaw. The P. W. 12, Usha Devi, is the sister of the P. W. 7, and the P. W. 13, Monoj kumar Shaw, is the brother of the deceased. The P. W. 13 has deposed that the P. W. 7 came to the place of occurrence and they jointly, that is to say P. Ws. 7, 12 and 13, removed the victim to the said hospital. The fact that P. W. 7 was there has been corroborated by the evidence of the P. W. 4. Whether the P. Ws. 12 and 13 had accompanied the P. W. 7 to the said hospital is a question which should have been asked while the P. W. 7 was in the box. The P. W. 7 was not asked any such question during her cross-examination. We do not, therefore, think that it lies in the mouth of Mr. Mukherjee to contend that the presence of the P. Ws. 12 and 13 has not been corroborated by any other witnesses. (28.) MR. Mukherjee submitted that P. W. 15 does not support the case of the prosecution. He, however, did not disclose his reasons for this criticism except referring to the absence of the fire-arm seized by the police, absence of the seizure list and the absence of the Forensic Science Laboratory reports report. (29.) WE are inclined to think that these are indeed lapses on the part of the Investigating Agency but on that ground the case of the prosecution cannot be thrown overboard nor can the lapses of the Investigating Agency be counted in favour of the accused. (29.) WE are inclined to think that these are indeed lapses on the part of the Investigating Agency but on that ground the case of the prosecution cannot be thrown overboard nor can the lapses of the Investigating Agency be counted in favour of the accused. It any authority is needed, reference may be made to the case of Prasad Yadav and others v. State of Bihar reported in (1999)2 SCC 126 . (30.) LASTLY, it was contended by Mr. Mukherjee that considering the fact that the so called eye-witnesses, namely, P. Ws. 12 and 13, have given a contradictory account as regards the persons who actually shot the deceased, benefit of doubt should be given to the accused persons. He reinforced his submission by submitting that although P. W. 12 deposed that Jalo Mondal and Bishu Barua came out from a newly constructed building but she failed to identify Bishu Barua. He submitted that this is an additional reason why this Court should hold that the complicity of the accused persons is in great doubt and, therefore, benefit of doubt should be accorded to them. (31.) BEFORE we answer this question, we shall take into account all the facts and circumstances which have been satisfactorily established by the prosecution which, according to us, are as follows : (a) There was long standing dispute between the accused persons and the deceased, Dilip Shaw. (b) Umpteen number of complaints in the form of General Diary were lodged in this regard by the P. W. 9. (c) The atrocity inflicted upon the deceased was reported to the concerned Additional S. P. and the Panchayat Prodhan in writing by the P. W. 9. (d) The accused Jalo Mondal, since deceased, raped the wife of the victim for which a case was pending. (e) In the presence of the P. W. 9, Jalo Mondal, since deceased, had threatened Dilip Shaw with a revolver in his hand. He had also assaulted Dilip Shaw on the date of Dolyatra. (f) On 20th November, 2001, at 12 noon the accused persons surrounded the victim, Dilip Shaw. (32.) THE only point on which there is difference in the evidence of the P. Ws. 12 and 13 is as to the person who actually shot the deceased. He had also assaulted Dilip Shaw on the date of Dolyatra. (f) On 20th November, 2001, at 12 noon the accused persons surrounded the victim, Dilip Shaw. (32.) THE only point on which there is difference in the evidence of the P. Ws. 12 and 13 is as to the person who actually shot the deceased. According to the P.W. 12, Ranjit Mondal and Ditu shot the deceased, whereas according to the evidence of the P. W. 13, Ranjit Mondal and Bishu barua shot the deceased. From the evidence of the P. W. 4 it appears that only one bullet injury was found. Therefore, the evidence that two of them shot the deceased is either incorrect or one of the bullets shot by two of the accused persons did not hit the deceased -only one had bullet hit the deceased. Whether Ranjit and Ditu shot the bullets as deposed by the P. W. 12 or Ranjit and Bishu shot the bullets as deposed by the P. W. 13 does not, in our view, present an insurmountable difficulty because the accused persons have been charged under Section 302 read with Section 34 of the i. P. C. The fact that all the five had participated in the crime is adequately proved. Therefore, the submission of Mr. Mukherjee cannot be accepted. (33.) AS regards the complicity of the accused Ditu, we find additional assurance from the fact that he along with Ranjit Mondal furnished information to the police which has been reduced to writing and has been marked exhibits 7 and 7/1 on the basis whereof the fire-arm and a bullet were recovered. Presence of Bishu Barua has been deposed to by both the p. Ws. 12 and 13 at the place of occurrence but the P. W. 12 failed to identify the accused Bishu Barua. Therefore, as against Bishu Barua there is the sole evidence of the P. W. 13. As regards the complicity of Bishu Barua we have only uncorroborated evidence of P. W. 13. Although there is no rule of law that the Court cannot act on the basis of uncorroborated evidence, but as a matter of prudence the Court insists upon corroboration. Therefore, the only one who can be given benefit of doubt is the accused, Bishu Barua. Although there is no rule of law that the Court cannot act on the basis of uncorroborated evidence, but as a matter of prudence the Court insists upon corroboration. Therefore, the only one who can be given benefit of doubt is the accused, Bishu Barua. (34.) IN the result C. R. A. No. 536 of 2005 partly succeeds in that the fourth appellant, Bishu Barua , is accorded benefit of doubt and is acquitted. The conviction and sentence of the appellant Bishu Barua are hereby set aside. He is in jail. Learned Trial Court is directed to release him forthwith if he is not required to be detained in any other criminal case. The appellants, ranjit Mondal and Subrata Roy, are in judicial custody. They are directed to serve out the remaining part of their sentence as awarded by the learned trial Court. The appeal, in so far as appellants No. 1, 2 and 3 are concerned, is, however, dismissed.