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2008 DIGILAW 734 (CAL)

Mantu Karan v. STATE OF WEST BENGAL

2008-07-23

GIRISH CHANDRA GUPTA, KISHORE KUMAR PRASAD

body2008
JUDGMENT Girish Chandra Gupta, J. 1. This appeal is directed against a judgment and order dated 18th July, 1990, by which the learned Additional Sessions Judge, 5th Court, Alipore, 24 Parganas (South) convicted the appellant, Mantu Karan, under section 302 of the Indian Penal Code for causing death of Sona Hazari as also under section 307 of the Indian Penal Code for attempting to cause murder of Madan Bhowmick and under sections 3 and 5 of the Explosive Substances Act in Sessions Trial No. 4(5) 1988 arising out of Sessions Case No.29(4) 1998. The convict, Mantu Karan, was sentenced to suffer imprisonment for life for the offence punishable under section 302 of the Indian Penal Code as also to suffer rigorous imprisonment for a period of seven years for attempting to murder Madan Bhowmick. Both the above sentences were directed to run concurrently. However, no separate sentence was awarded for the offences punishable under sections 3 and 5 of the Explosive Substances Act. 2. The facts and circumstances of the case briefly stated are as follows : On 5th November, 1987, in the night between 10.30 p.m. and 10.45 p.m. Madan Bhowmick, P.W. 14, was gossiping with his friend, Son a Hazari, since deceased, in the Tala Jheel Park. All on a sudden, the appellant, Mantu Karan, appeared before them and hurled a bomb at Sona Hazari. Sona Hazari fell down. Madan Bhowmick was also injured. Madan Bhowmick fled away from the place heading towards his house. At home he narrated the incident to his brother, Rabin Bhowmick. He thereafter accompanied by his brother, Rabin Bhowmick, went to the house of Son a Hazari and informed his relatives. The brother and the brother-in-law of Sona Hazari accompanied Madan Bhowmick to the place of occurrence between 1.30 a.m. and 2 a.m., Sona Hazari was not there at the place of occurrence. The police had already arrived. Sona Hazari by that time had been removed to R.G. Kar Medical College and Hospital where he was declared brought dead at around 0.45 hours. Madan Bhowmick met the police officer and narrated the incident. His statement was recorded which was eventually treated as the First Information Report. Police had arrived at the place of occurrence on the basis of a telephonic information given by one Dipak. Madan Bhowmick met the police officer and narrated the incident. His statement was recorded which was eventually treated as the First Information Report. Police had arrived at the place of occurrence on the basis of a telephonic information given by one Dipak. The evidence of the Investigating Officer, the P.W. 17, is that before leaving the police station he had recorded a G.D. entry. Considering the fact that Madan Bhowmick was also injured, he was taken to the same doctor, who had earlier examined Sona Hazari and was examined. The medical papers have been produced. The evidence of the doctor is that P.W. 14, Madan Bhowmick, during examination on 6th November, 1987, at 7 a.m. told him that Mantu Karan had hurled a bomb which injured both Sona Hazari and Madan Bhowmick. The history of the case was contemporaneously recorded in the records of the R.G. Kar Medical College and Hospital which were produced in Court. 3. The police on the basis of information furnished by Madan Bhowmick sought to arrest the accused Mantu Karan. He absconded for some time and was ultimately arrested on 17th November, 1987. 4. The learned Trial Judge convicted the appellant, Mantu Karan, principally on the basis of the evidence of P.Ws. 14, 5, 3, 15 and 17. 5. In order to correctly appreciate the reasoning of the learned Trial Judge quoted above, it has to be pointed out that the charge originally framed was defective. After the witnesses were examined and arguments were heard, the matte was fixed for delivery of judgment on 30th May, 1990. Possibly during the period when the learned Trial Judge was drafting the judgment, he noticed that the charge as framed was defective. By the incident of hurling a bomb Sona Hazari had expired and Madan Bhowmick was injured whereas in the charge it was recited that Madan Bhowmick had expired and Sona Hazari was injured. The charge was thereafter corrected by the learned Trial Judge and the matter was set down for rehearing. A fresh schedule of examination of the witnesses was fixed. In the fresh schedule the dates were fixed for examining the P.Ws. from 19.6.90 to 22.6.90 and on that dates P.Ws. 2 to 4, 5, 6, 7, 9, 11, 12, 13, 14, 15 and 17 were produced for further examination by the prosecution and cross-examination by the defence. A fresh schedule of examination of the witnesses was fixed. In the fresh schedule the dates were fixed for examining the P.Ws. from 19.6.90 to 22.6.90 and on that dates P.Ws. 2 to 4, 5, 6, 7, 9, 11, 12, 13, 14, 15 and 17 were produced for further examination by the prosecution and cross-examination by the defence. It would now become clear why before 21st June, 1990, the learned Advocate, appearing for the defence, and the learned Public Prosecutor both submitted before the Court that they did not want further examination-in-chief or to cross-examine the P.W. 14. 6. Mr. Roy, learned Counsel, appearing in support of the appeal, made the following submissions: His first submission is based on the following evidence of the Investigating Officer, P.W. 17: "On receipt of the information I left the P.S. after making a G.D. entry." 7. The G.D. entry deposed to have been made by the P.W. 17 was not, in fact, produced in Court. 8. Mr. Roy submitted that the G.D. entry was deliberately withheld. If the G.D. entry had been produced the same would have gone against the case of the prosecution. 9. We have to assess the correctness of this statement on the basis of other evidence of P. W. 17 as regards information which he received telephonically which is as follows: "On 5.11.87 I was posted at Chitpur P.S. as S.I. of Police. On that date I was duty officer in the P.S. from 9 p.m. At about 11 p.m., I received an information over telephone by one Dipak Patjak that he got an information from the local boys that there was explosion of bombs inside Tala Park in the same night. He also informed me that one person was lying in injured condition inside the Tala Jhill Park. I informed the O.C., Chitpur P.S. and at once I left for Tala Jhill Park." 10. The Investigating Officer after receipt of the information left the police station after making the G.D. entry. The G.D. entry could not have contained anything other than what he was informed. The P.W. 17 has in his evidence indicated as to the nature of the information. The Investigating Officer after receipt of the information left the police station after making the G.D. entry. The G.D. entry could not have contained anything other than what he was informed. The P.W. 17 has in his evidence indicated as to the nature of the information. Therefore, mere non-production of the G.D. entry, we are afraid, may not be a matter of much seriousness regard being had to the fact that P.W. 17, while he was in the box, was not called upon to produce the G.D. entry in Court. We are fortified in our view by the judgment of the Apex Court in the case of Uppari Venkataswamy & Ors. vs. Public Prosecutor, High Court of A.P., reported in 1996(7) SCC 232 , where the following view was taken in paragraph 53 of the said report: "So far as the fourth submission of non-production of police diary is concerned the High Court has rightly held that no attempt was made by the defence during trial to call upon the prosecution side to produce the police diary. Therefore, grievance regarding the same would pale into insignificance. But even apart, as PW 17 Bhaskaran had stated in his evidence all that he noted in the police diary on receipt of the message was about occurrence of the incident without any details and consequently non-production of the police diary had not resulted into any prejudice to the defence." 11. The second submission made by Mr. Roy, the learned Counsel, for the appellant, was that the written complaint being Exhibit 9 recorded by the police on the basis of the statement made by P.W. 14 is hit by section 162 of the Code of Criminal Procedure because investigation by that time had already commenced. There is no denial of the fact that before P.W. 14, Madan Bhowmick, accompanied by the relatives of the deceased Sona Hazari reached the place of occurrence, the police had already reached the place of occurrence; the victim was removed to the R.G. Kar Medical College and Hospital and a seizure list was also prepared. Within three hours the statement of the P.W. 14 was recorded. A statement under section 154 Cr.PC is not a substantive piece of evidence in any event. We shall proceed on the basis that the written complaint can only be treated as a statement under section 161 Cr. PC. 12. Within three hours the statement of the P.W. 14 was recorded. A statement under section 154 Cr.PC is not a substantive piece of evidence in any event. We shall proceed on the basis that the written complaint can only be treated as a statement under section 161 Cr. PC. 12. The third submission advanced by Mr. Roy was that Rabin Bhowmick was not examined. Rabin Bhowmick is the person to whom P.W. 14, Madan Bhowmick reported the incident after reaching home. Rabin Bhowmick is the brother of Madan Bhowmick. We fail to see how is Rabin Bhowmick a material witness in this case. The P.W. 5, Mritunjoy Hazari is the brother of Sona Hazari. The P.W. 14, Madan Bhowmick, accompanied by Rabin Bhowmick went to the house of Sona Hazari and informed the incident to the family members of the deceased including P.W. 5, Mritunjoy Hazari, who is a brother of the deceased. The P.W. 5, Mritunjoy Hazari, in his evidence has disclosed the information received by him from P.W. 14, Madan Bhowmick. Mr. Roy contended that the evidence of the P.W. 5, Mritunjoy Hazari, is useless because it is merely a hearsay evidence. If the evidence of P.W. 5, according to him, is hearsay with regard to which we have great reservations, we fail to understand how could the presence of Rabin Bhowmick in the box have improved the situation. Because he would also have narrated the information which he had collected from the P.W. 14, Madan Bhowmick. 13. The next submission advanced by Mr. Roy was that no motive of the crime has been disclosed by the prosecution. 14. Mr. Asimesh Goswami, the learned Public Prosecutor, for the State, submitted that it is not for the prosecution to prove the motive. 15. We think that there is lot of substance in the submission of Mr. Goswami, the learned PP. When dependable evidence is there, the prosecution is not obliged to prove the motive of the crime. If any authority is needed, reference may be made to the judgment in the case of Mulakh Raj Vs. Satish Kumar & Ors., reported in AIR 1992 SC 1175 , wherein Their Lordships held "Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. If any authority is needed, reference may be made to the judgment in the case of Mulakh Raj Vs. Satish Kumar & Ors., reported in AIR 1992 SC 1175 , wherein Their Lordships held "Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its nonexistence. The failure to prove motive is not fatal as a matter of law". 16. Lastly, Mr. Roy, learned Counsel, for the appellant, attacked the evidentiary value of the evidence of the P.W. 14, Madan Bhowmick. According to him, the conduct of Madan Bhowmick, the P.W. 14, at the time of the incident was far from natural. Madan Bhowmick, the P.W. 14, according to him, was expected to take steps for making medical assistance available to the deceased, Sona Hazari, rather than taking to heels. This, according to him, casts a serious doubt as to the truthfulness of the evidence of the P.W.14, Madan Bhowmick. 17. We are unable to accept this submission when we visualise the situation of the case. It was a night in the month of November. Sona Hazari and Madan Bhowmick were gossiping in the Tala Jhill Park. The winter had already set in. Son a Hazari was attacked by a bomb and he was fatally wounded. Madan Bhowmick had also received injury on his face. There was no assurance available to Madan Bhowmick that more attacks would not be forthcoming or more persons will not come to attack him. The natural tendency of a living being to strive for safety cannot be discounted. It was only natural for him to run away from the place to save his life. He did have at the back of his mind the duty to attend his friend and for that he first went to his own house, took assistance from his brother, Rabin Bhowmick, then accompanied by him he went to the house of Sona Hazari, informed his relatives, took them along and came back to the place of occurrence. We do not find anything unnatural in his conduct nor are we ready to view the evidence of the P.W. 14, Madan Bhowmick, with any amount of suspicion for such conduct. 18. We do not find anything unnatural in his conduct nor are we ready to view the evidence of the P.W. 14, Madan Bhowmick, with any amount of suspicion for such conduct. 18. The next line of attack concerning the evidence of Madan Bhowmick, the P.W. 14, adopted by Mr. Roy, the learned Counsel, for the appellant, was that the whole of the evidence of the P.W. 14 was not taken into consideration. The P.W. 14 was examined and cross-examined on 18th April, 1990. The records revealed that on 18th April, 1990, on the prayer of the defence, hearing was adjourned. On 19th April, 1990, there was a full Court reference and the learned Advocates abstained from working. On 20th April, 1990, the P.W. 14, Madan Bhowmick attended the Court to face further cross-examination. During such cross-examination he made a somersault and resorted to making allegations against the police including that he was compelled to give evidence which he gave on 18th April, 1990. The learned Trial Judge has dealt with this aspect of matter in great detail and has given adequate reasons why the evidence of the P.W. 14, Madan Bhowmick, given on 18th April, 1990, could safely be relied upon for the purpose of deciding this case. The reasoning advanced by the learned Trial Judge is as follows: "If we carefully scrutinise the evidence of P.W. 14 and consider the entire facts and circumstances of the case together with the evidence on record, we will see that the subsequent cross-examination of the P.W. 14 has been done not at the instance of the I.O. but at the instance of the accused. The accused has chosen to take this way procuring some contradictory statements from P.W. 14 when he saw that P.W. 14 had given a very strong evidence against him on the previous date. The accused might have threatened the P.W. 14 with dire consequences, had he not obliged the accused by giving the aforesaid contradictory statements. In my view, the defence took that recourse only to minimise the value of the evidence adduced by P.W. 14 on the previous date. On the previous date P.W. 14 was also cross-examined to a great extent but on that date, no contradiction was brought out in his cross-examination. On the other hand, nothing was brought out in his cross-examination to render his evidence unworthy of credit. On the previous date P.W. 14 was also cross-examined to a great extent but on that date, no contradiction was brought out in his cross-examination. On the other hand, nothing was brought out in his cross-examination to render his evidence unworthy of credit. On the contrary, in his cross-examination on the previous date, P.W. 14 made statement fully corroborating the FIR case as well as the evidence of P.W. 5, Mritunjoy Hazari, brother of the deceased Son a Hazari. He stated in his cross-examination on the previous date that he had come to the Court for his deposition on his own initiative. Police did not bring him to the Court for the purpose. He also stated that it was about 1.30/2 a.m. when he returned to the P.O. with his brother Rabin and brother and brother-in-law of Son a Hazari. P.W. 5, Mritunjoy, brother of Sona fully corroborated this evidence of P.W. 14. P.W. 14 further stated in his cross-examination on the previous date that on his return to the P.O. he stated to the police that Mantu Karan threw a bomb on Son a Hazari. The statements made by P.W. 14 in his cross-examination on the previous date that on his return to the P.O. he stated to the police that (18.4.90) are in full consonance with the statements made by him in the chief. The statement is made by P.W. 14 in his chief and part cross-examination on 18.4.90 not only lend support to the story of the prosecution in to but also find corroboration in the evidence of doctor (P.W. 3) who examined and medically treated the victim Madan Bhowmick (P.W. 14) within few hours of the occurrence and also in the evidence of P.W. 5, Mritunjoy Hazari, brother of Sona Hazari who came to know about the incident from P.W. 14 at whose instance he had also been to the place of occurrence immediately after the occurrence. But the solitary statements made by P.W. 14 in his subsequent part of cross examination are without any bearing whatsoever. As if all on a sudden a good sense prevailed in the mind of P.W. 14, though a victim that he was to reveal the truth. But the solitary statements made by P.W. 14 in his subsequent part of cross examination are without any bearing whatsoever. As if all on a sudden a good sense prevailed in the mind of P.W. 14, though a victim that he was to reveal the truth. P.W. 14 in his subsequent part of cross examination stated that on that date i.e. 20.4.90 he was produced from the police custody for his deposition and after his deposition he was again to be taken into police custody. If we believe this utterance of P.W. 14, was it really or at all possible for P.W. 14 to depose before the open Court directly making various allegations against the police without any fear particularly on the subsequent date of his cross-examination? On the other hand, there is nothing to show that on the previous date i.e. 18.4.90 P.W. 14 was compelled to depose in favour of the prosecution as on that date he was in police custody. On the contrary, P.W. 14 has categorically stated in his part cross-examination on the previous date that police had not brought him to the Court. It would have been probable or at least believable, had P.W. 14 deposed that as he was in police custody on the previous date (18.4.90), he was compelled to depose in favour of the prosecution on that date but as he was not in police custody or was not under the clutch of the police on the subsequent date, he did not hesitate or had no difficulty to disclose the truth. But the contrary is not possible. Moreover, it goes to show from the record that the defence filed a petition in the Court on 19.6.90 intimating the Court that P.W. 14 Madan Bhowmick was untraced and the accused came to learn that the I.O. had confined him against his will in his custody to force him to depose against the accused. If there was any substance in such contention, then why the prosecution did not ultimately produce P.W. 14 for his deposition in Court when other P.Ws. were examined and cross-examined on recall after modification of the charges? If there was any substance in such contention, then why the prosecution did not ultimately produce P.W. 14 for his deposition in Court when other P.Ws. were examined and cross-examined on recall after modification of the charges? In this connection I have already stated in my foregoing lines that the defence filed two petitions disclosing its intention not to further cross-examine P.W. 14, when the charge was prepared to be 'amended and another when P.W. 14 did not turn up although he was required to be further examined and cross-examined' after modification of the charges. It is to be noted that on the second petition of the defence, the Id. P.P. in charge also made an endorsement to the effect that he would not also examine P.W. 14 further. Had there been any truth in the aforesaid allegation of the defence, the prosecution would not have proceeded with the case without examining P.W. 14 further. On the other hand, the prosecution would have found an opportunity to declare P.W. 14 as a hostile witness because of his aforesaid contradictory statements made by him in his subsequent part of cross-examination or the prosecution would have at least got a chance to make a clarification on to that effect by P.W. 14. For all these reasons, I do not think that the prosecution had any necessity to withhold P.W. 14 in the manner as alleged by the defence. On the contrary, from the very inception, it was brought to the notice of the Court that the vital and sole eye-witness P.W. 14 was being restrained from giving his evidence in Court in spite of due service of summons on him for which the Court had an occasion to secure the attendance of P.W. 14 for his deposition by issuing warrant of arrest on him. This circumstance leads me to believe that it is the accused who was from the very beginning trying to prevent P.W. 14 from giving his evidence in Court by way of threat on him or creating an atmosphere or reign of terror. Considering the aforesaid facts and circumstances, I, therefore, hold that the evidence of P.W. 14, both in chief and cross-examination adduced on 18.4.90 has not been vitiated or under valued for the alleged contradictory statements of P.W.14 made on the subsequent date of cross-examination on 20.4.90." 19. Considering the aforesaid facts and circumstances, I, therefore, hold that the evidence of P.W. 14, both in chief and cross-examination adduced on 18.4.90 has not been vitiated or under valued for the alleged contradictory statements of P.W.14 made on the subsequent date of cross-examination on 20.4.90." 19. We have scanned the evidence and are satisfied that the evidence of the P.W. 14, Madan Bhowmick, gets corroboration from the evidence of the P.W. 15, Amit Roy, who deposed that there was light at the place of occurrence. He also deposed that he saw the accused, Mantu Karan, passing by them. The fact that the accused absconded after the incident is also a circumstance which goes against him. The fact that the name of the accused was disclosed by the P.W. 14 to the doctor immediately after the incident before there was any scope for any concoction lends assurance to the Court as to the veracity of the evidence of P.W. 14, Madan Bhowmick, given on 18th April, 1990. The evidence of Dr. Tribedi, P.W. 3, who had examined P.W. 14, Madan Bhowmick, on 6th November, 1987, and found splinter injury lends further assurance as to the veracity of the evidence of P.W. 14, Madan Bhowmick, given on 18th April, 1990. 20. We are, for the reasons, inclined to think that the learned Trial Judge took a reasonable view of the matter on the basis of the evidence before him. We are further of the view that there is no scope for any interference. 21. The appeal, in the circumstances, fails and the same is dismissed. 22. The appellant, Mantu Karan, is in custody. He is directed to serve out the sentence. 23. Let a copy of the judgment and the Lower Court Records be sent down to the concerned learned Trial Court for information and necessary action. 24. Let urgent xerox copy of the judgment, if applied for, be delivered to the learned Counsel, for the parties, upon compliance of usual formalities. I agree. Appeal dismissed.