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2008 DIGILAW 864 (CAL)

Phani Bhushan Konar v. STATE OF WEST BENGAL

2008-08-25

ASHIM KUMAR BANERJEE, TAPAS KUMAR GIRI

body2008
Judgment :- BANERJEE, J (1) ON a dispute in the matter of using of irrigation water two groups fell out. There had been altercation on the paddy field. The dispute was temporarily resolved. Both groups came back to the village when Ajit assaulted one Sufal Sheet with sphere. Sufal sustained injury. He was taken to the house of Gita Rani Sheet where preparation was being made to send Suful to nearby hospital. Ajit group constantly hurled brickbats on the house of Gita Rani. They ultimately took control of the house and the dragged the victims out of the house. One of the victims Tarapada Malick succumbed to the injury subsequently in the hospital. Others sustained injury and were treated in the hospital. According to the police, Tarapada before his death made a statement, inter alia, under Section 161 of the Criminal. Procedure Code stating that Chandu, Ajit, Biswanath, Phani and others assaulted him by Lathi, Khonch, Chopper (Ram Da). Biswanath hit him with Chopper on his head. The prosecution through the Investigating Officer exhibited such statement that was accepted by the learned Judge as a dying declaration. (2) ALL the accused pleaded not guilty and faced trial. Before the learned Judge the prosecution witnesses being the villagers turned hostile except the Investigating Officer and the Doctor. The complainant himself proved the prosecution case in his examination-in-chief. In cross-examination which was held about two and half months after the examination-in-chief the complainant turned around and demolished the case of the prosecution by confusing the Court by making contradictory statements. (3) THE learned Judge heavily relied on the dying declaration as well as the post- mortem report and the evidence of the Doctor and held all the accused guilty of the offence who were named in the said dying declaration. (4) WE have heard Mr. Y. N. Dastoor, learned Counsel being assisted by Mr. Dipanjan Chatterjee appearing for the appellants and Mr. S. K. Mahato, learned Counsel, appearing for the prosecution. We have carefully perused the deposition as well as the judgment and order of the learned Judge. (5) ON a combined reading of the entire deposition we are of the view that the evidence did not support the case of the prosecution to bring home the charges brought against the accused. (6) LET us now consider the effect of the statement made by Tarapada. (5) ON a combined reading of the entire deposition we are of the view that the evidence did not support the case of the prosecution to bring home the charges brought against the accused. (6) LET us now consider the effect of the statement made by Tarapada. (7) SECTION 32 of the Evidence Act, inter alia, provides as follows :-- "32. Case in which statement of relevant fact by person who is dead or cannot be found, etc. , is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases :- (1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " (8) ON a plain reading of the said provision it appears that since the victim had died after making such statement and he could not be made available for cross-examination or to authenticate the said statement the Court may rely upon such statement. (9) ON perusal of the said document it appears that it was recorded on a plain sheet of paper duly signed by the Investigating Officer. It was, however, not witnessed by the Doctor or any para medical staff present at the time of recording such evidence. It was also not witnessed by any other person. (9) ON perusal of the said document it appears that it was recorded on a plain sheet of paper duly signed by the Investigating Officer. It was, however, not witnessed by the Doctor or any para medical staff present at the time of recording such evidence. It was also not witnessed by any other person. The prosecution also could not prove the said document by any other mode. Hence it would be dangerous to hold the victims guilty of the offence solely relying upon such piece of evidence. (10) MR. Dastoor has tried to contend that such statement was taken into consideration by the learned Judge. Learned Judge possibly overlooked the fact that even by giving full credence to the said evidence it would appear from a comparative study of the said evidence and the medical evidence the Court, at best, could hold the accused guilty of the offence under Section 304 Part - II. In no stretch of imagination the provision of Section 302 could not have any application in the instant case. (11) WE need not deal with the submission of Mr. Dastoor on that score as we find that it would be totally unsafe to affirm the decision of the Court below solely relying upon the exhibit 2 being the statement made under Section 161 of the Criminal Procedure Code taking it as a dying declaration under Section 32 (1) of the Indian Evidence Act. (12) THE appeal succeeds. The judgment and order of the Court below is set aside. The bail bond is cancelled. The sureties are discharged. (13) LET Lower Court records be sent down along with a copy of this judgment and order.