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2008 DIGILAW 943 (CAL)

Dilip Mukherjee v. STATE OF WEST BENGAL

2008-09-23

KALIDAS MUKHERJEE, SUBHRO KAMAL MUKHERJEE

body2008
JUDGMENT: KALIDAS MUKHERJEE, J. (1.) This is an appeal assailing the judgment of conviction and sentence passed by learned Additional Sessions Judge, 5th Court, Paschim Midnapore in Sessions Trial No. XVII/NOV/95 sentencing the appellant to suffer imprisonment for life and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for a further period of one year for offence punishable under Section 302, I.P.C.; to suffer R.I. for three years and to pay a fine of Rs. 1,000/- in default to suffer R.I. for a further period of six months for the offence punishable under Section 380,I.P.C. and also directed the appellant to suffer R.I. for three years for the offence under Section 27 of the Arms Act. There was further direction that all the sentences will run concurrently. (2.) The prosecution case as set forth in the F.I.R. is that one Fatick Mondal, constable bearing No. C-1232 attached to D.A.P. Force at Midnapore lodged complaint on 07.8.05 at 02.25 hours with the I.C. Kotwali P.S. Midnapore alleging that he was posted as a security guard of A.D.M., D.L.L.R.O., Midnapore. He used to stay with other constables in the First Floor of the Additional Barrack of the police lines. On 06.8.95 at 8.45 P.M. he returned from duty and his revolver bearing No. MI-368 issued in his name and 3,0 rounds of cartridges were kept inside the container of his official belt. He kept the revolver and the said cartridges in his official black coloured box under lock and key and put the key under the pillow of his bed. He took bath and after taking food returned to the barrack. Thereafter, he went to the roof of the barrack. At about 11.30 P.M. he got down from the roof and lay on the bed. After about 10 minutes he heard a sound and on hearing the same he along with other constables i.e. Kalyan Mukherjee, Harisadhari Das, Muchiram Mahato, Ayan Chandra Mahato, Arunabha Bauri, Golam Kuddus Mondal and many others got up from bed and saw in the electric light of the barrack that constable Dilip Mukherjee holding a revolver in his hand was running away towards western staircase of the North Barrack. Golam Kuddus and Harisadhan Das noticed that constable Ganesh Manna was lying on the eastern side of the barrack and did not rise from his bed and was lying with bleeding injuries in his mouth and ears. Then and there some constables chased Dilip Mukherjee and some others were making arrangement for taking the injured Ganesh Manna to the hospital. Dilip Mukherjee could not be apprehended. The informant noticed that his box containing the revolver and the cartridges were in unlocked condition and on search he could not find out his service revolver bearing No. MI-368 and 30 round of cartridges, belt and the container. The informant could then realize that Dilip Mukherjee, who used to stay in a bed in the said barrack took the revolver of the informant with cartridges and belt and shot at the head of the constable Ganesh with that revolver. The injured Ganesh was taken to Midnapore Sadar Hospital where he was declared dead. It has also been alleged that when Dilip Mukherjee was on duty in the Magazine Section of the Police Line in the month of December, 1994, there was a scuffle between him and Ganesh Manna with a rifle. (3.) Upon receipt of the complaint, the Kotwali P.S. Case No. 264/95 was started under Section 461/379/302, I.P.C. and 25 Arms Act. After completion of investigation, the charge sheet was submitted. (4.) The charges were framed under Sections 302, 380 of the Indian Penal Code and Section 27 of the Arms Act. The accused/appellant pleaded not guilty to the charges and claimed to be tried. (5.) The learned Additional Sessions Judge upon consideration of the materials on record passed the impugned judgment of conviction and sentence holding that the defence took the plea of alibi and the burden heavily lay on the accused to prove that he. was no! present in the additional barrack at the material point of time. The learned Judge further observed that the plea of defence as an alibi could not be taken into consideration as per Section 11 of the Indian Evidence Act. The learned Judge observed that it was well established from the evidence of the P.Ws. and the answers given by the accused to the questions put to him in the statement under Section 313, Cr.P.C. that Dilip was very well present at the police barrack at the material point of time. The learned Judge observed that it was well established from the evidence of the P.Ws. and the answers given by the accused to the questions put to him in the statement under Section 313, Cr.P.C. that Dilip was very well present at the police barrack at the material point of time. It was held that from the evidence of all the constable witnesses it was clear that there was a tremendous sound and they woke up and found Dilip running away from the Additional Barrack and thereafter, Fatick detected that his revolver with waist belt and 30 rounds of bullets were missing from the kit box. The learned Judge relied on the recovery of the revolver from the possession of the accused Dilip and hold that the recovered revolver was identical with the revolver which was issued to P.W. 1 Fatick. The learned Judge observed that in appreciating the evidence, minor discrepancies might be noticed from which no criminal case was free. It was held that none saw Dilip to murder Ganesh, but, from the evidence on record it was established that Dilip was found in the Additional Barrack prior to the incident and immediately thereafter there was found running away from the barrack with a revolver. It was, however, held that, in the facts and circumstances, motive was not so relevant. The learned Judge ultimately had no hesitation in finding the appellant guilty and passing the sentence as aforesaid. (6.) Being aggrieved by the said judgment of conviction and sentence passed by the learned Trial Judge, the appellant had preferred the instant appeal. (7.) Mr. Mukherjeo, the learned Counsel submits that the examination of the appellant under Section 313, Cr.P.C. was not properly done by the learned Trial Judge. Mr. Mukherjee submits that the G.D. entry was recorded earlier in point of time containing the details of the commission of the cognizable offence as alleged and the subsequent lodging of the F.I.R. becomes inadmissible being hit by Section 162 of Cr.P.C. It is contended that although the prosecution allegation is that the revolver was recovered from the possession of the accused person and the accused was found running away with the revolver, curiously enough, no charge under Section 25 of the Arms Act was framed against the appellant by the learned Trial Court. So far as the charge under Section 27 of the Arms Act is concerned, Mr. So far as the charge under Section 27 of the Arms Act is concerned, Mr. Mukherjee contends that there is no order of sanction from the concerned authority for lodging prosecution under Section 27 of the Arms Act. It is contended that excepting Fatick (P.W. 1) no other person found Dilip sitting in the cot and so far as the alleged presence of Dilip is concerned, the prosecution could not produce the barrack register at the time of trial and from the evidence of P.W. 1 it would appear that the signature of appellant Dilip was not there. In this context, Mr. Mukherjee submits that the appellant has been falsely implicated in this case. Mr. Mukherjee has referred to and relied on the decisions reported in 1997 Cr LJ 1586 : 1997 C Cr LR (Cal) 54, Ranjit Mondal and Sajal Barui and etc. v. State ; AIR 1968 SC 110 The State of Maharashtra v. Dr. R. B. Chowdhuryand Ors. and 1993 CrLJ 1871 Surinder Pat Jain v. Delhi Administration. (8.) Mr. Mukherjee contends that in absence of any charge under Section 25 of the Arms Act, the learned Trial Judge erred in holding that the revolver of Fatick was recovered from the possession of the appellant on the next day in the afternoon and that it was identical with the revolver of Fatick bearing the mark MI-368. Mr. Mukherjee while taking us through the evidence of the P.Ws. submits that there are glaring and severe discrepancies and inherent improbabilities in the evidence of the P.Ws. on material particulars. (9.) Mr. Mukherjee contends that the F.S.L report does not conclusively establish that firing was made from the alleged recovered revolver and the arms expert has not been examined. Mr. Mukherjee contends that in the postmortem report also the autopsy surgeon did not opine whether it was a case of homicide or suicide. (10.) Mr. Samad, the learned Counsel appearing on behalf of the State by referring to the relevant portions of the evidence of the P.Ws. submits that the witnesses categorically stated that, immediately after hearing the sound, Dilip was found running away with the revolver and the revolver was recovered from the possession of the appellant on the next day in the afternoon. Mr. Samad submits that the appellant was identified in the electric light while he was running away. Mr. submits that the witnesses categorically stated that, immediately after hearing the sound, Dilip was found running away with the revolver and the revolver was recovered from the possession of the appellant on the next day in the afternoon. Mr. Samad submits that the appellant was identified in the electric light while he was running away. Mr. Samad submits that the appellant was suspended for an earlier incident of attacking the constable Ganesh Manna and the motive behind the incident of murder owes its origin to the earlier incident of December, 1994. (11.) Mr. Samad submits that the answers given by the accused in the statement under Section 313, Cr.P.C. can be used against him. It is contended that as regards recovery of the service revolver, there is the evidence of P.Ws. 24, 28 and 29 and on the point of the running away of the appellant from the place of occurrence with the service revolver, he relied on the evidence P.Ws. 1, 2, 3, 7, 8, 9 and 10. It is contended that there is previous enmity between the appellant and the deceased Ganosh Manna because of the earlier incident of December, 1994 when the appellant tried to kill Ganesh Manna and the motive behind the incident of tho instant case can well be traced to the incident of December, 1994. Mr. Samad submits that from the F.S.L. report it would be appear that the revolver was used on the several occasions. Mr. Samad has referred to and relied on a decision reported in (1974)3 SCC 584 Nathusingh v. The State of Madhya Pradesh and submits that the evidence of the witnesses examined by the prosecution in this case cannot be discarded on the ground that they are police personnel. (12.) As regards the presence of The appellant at the time and place of alleged occurrence, the learned Trial Judge has relied on the answers given by the appellant as to question. Nos. 3, 4 and 6 put to him under Section 313, Cr.P.C. The learned Trial Judge also relied on the oral testimony so far as the presence of the appellant is concerned. The learned Trial Judge while discarding the plea of alibi under Section 11 of the Evidence Act has recorded the finding that the appellant was present at the material point of time at the alleged time and place of occurrence. The learned Trial Judge while discarding the plea of alibi under Section 11 of the Evidence Act has recorded the finding that the appellant was present at the material point of time at the alleged time and place of occurrence. (13.) The learned Trial Judge erred in law in holding that the burden of proving alibi heavily lay upon the accused, in as much as, it was for the prosecution to prove that the accused/appellant was present at the alleged time and place of occurrence. (14.) It is in evidence that because of the earlier incident of December, 1994 the appellant was placed under suspension. Mr. Samad submits that there is no rule to permit a suspended constable to stay at the barrack and there was no written permission in favour of the appellant to stay at the barrack. Mr. Samad, however, contends that it was only on the date and time of occurrence the appellant was present there. Now, it appears from the evidence of P.W. 1 that one register of attendance of the police constables is maintained in the barrack and that it will not be seen from the said register that on the relevant night of incident Dilip Mukherjee was present at the additional barrack. The attendance register maintained in the barrack is the best evidence to prove the alleged presence of the appellant at the barrack prior to and on the date of occurrence. But the attendance register is not forthcoming. (15.) As regards the question put to the appellant under Section 313 Cr.P.C., the learned Trial Judge observed that the appellant answered as against question Nos. 3, 4 and 6 in the affirmative as to his stay in the barrack, but, as against question Nos. 10 to 13 and 16 it has categorically been stated by the appellant that he was not present there on that date as he was then under suspension and that the allegation raised against him was false. (16.) The answers given by accused in the statement under Section 313, Cr.P.C. cannot be treated as evidence, but, it can be taken into consideration. It is also well setteled that the statement of the accused under Section 313, Cr.P.C. cannot bo the substitute for the prosecution evidence and it cannot be the sole ground of conviction. (16.) The answers given by accused in the statement under Section 313, Cr.P.C. cannot be treated as evidence, but, it can be taken into consideration. It is also well setteled that the statement of the accused under Section 313, Cr.P.C. cannot bo the substitute for the prosecution evidence and it cannot be the sole ground of conviction. Apart from the answers given by the accused in the statement under Section 313, Cr.P.C., the Court has to look to other evidence. (17.) Here the appellant categorically denied his presence at the time and place of occurrence and pleaded innocence. Such being the position, we are of the considered view, that the learned Trial Judge misdirected himself in construing the statement of the accused recorded under Section 313, Cr.P.C. in coming to a finding that the appellant was present at the alleged time and place of occurrence. Furthermore, most of the P.Ws. have stated in a parrot like manner that on hearing a tremendous sound, they woke up and found appellant Dilip Mukherjee running away from the hall of the barrack with a service revolver in his hand. It is something unusual that when the accused was allegedly fleeing away, most of the constables witnesses could notice that it was a "service revolver". It is the case of the prosecution that there was light in the hall of the barrack whore the constables used to stay. But P.W. 2 in the cross-examination has stated that there was arrangement for zero power dim light in their barrack hall and light arrangement was made on the passage for the convenience of the movement of the police personnel and others. P.W. 2 Golum Kuddus also used to reside in the same barrack where the incident allegedly took place. It is very difficult to believe that in the light of zero power bulb, the police personnel could see appellant Dilip to flee away with the "service revolver". (18.) P.W. 1 in cross-examination has stated that as a matter of fact they could not chase the accused Dilip Mukherjee, although, the other witnesses stated that P.W. 1 Fatick and 4-5 others chased accused Dilip. P.W. 8 has stated in his cross-examination that he did not see Dilip running towards the road. (18.) P.W. 1 in cross-examination has stated that as a matter of fact they could not chase the accused Dilip Mukherjee, although, the other witnesses stated that P.W. 1 Fatick and 4-5 others chased accused Dilip. P.W. 8 has stated in his cross-examination that he did not see Dilip running towards the road. P.W. 1 in his cross-examination has stated that none of them shouted when Dilip Mukherjee was running away from the barrack with a view to chasing and apprehending him. P.W. 8 has stated in his cross-examination that none raised any alarm while chasing Dilip. This abstinence of the police personnel present in the said barrack hall from raising any shouts immediately after the occurrence is not in consonance with ordinary human conduct. (19.) It is in evidence that P.W. 1 Fatick Mondal after returning from duty had kept his service, revolver with cartridges in the kit box under lock and key. But, it is difficult to believe that in presence of so many constables, accused Dilip Mondal after crossing so many beds carne to the bed of Fatick Mondal and broke open the lock of his kit box and took away the service revolver and cartridges without being noticed and intercepted by any other constable present in the said hall. (20.) It is in evidence of P.W. 1 that the service revolver is required to be deposited with the Magazine office after the duty hours. There is no explanation as to why after the duly hours, the service revolver of P.W. 1 was not deposited with the Magazine Section. In this connection another witness P.W. 4 has also stated that after the duty hours the arms are required to be deposited with the Magazine Section and ho on 06.8.1995 also deposited his arms with the said office. He could not say the names of the constables who were in possession of the arms on 6.8.1995 at night. P.W. 9 in his cross-examination has stated that they are required to deposit their arms with Magazine Office after completion of their duly hours and when they were endorsed for any duty they used to receive their arms from Magazine Office. P.W. 9 in his cross-examination has stated that they are required to deposit their arms with Magazine Office after completion of their duly hours and when they were endorsed for any duty they used to receive their arms from Magazine Office. (21.) P.W. 1 has stated that he was in the dark about the contents of the command certificate issued in his favour and that no proceeding has been started against him for the loss of his service revolver from his kit box and that the said kit box is still lying in his possession. (22.) It is in the evidence of P.W. 2 that Fatick told that as his revolver and bullets were not available in his kit box, it was presumed that accused Dilip had opened fire aiming at Ganesh with his service revolver after taking out the same from his kit box. (23.) It is in the evidence of P.W. 4 that Fatick Mondal disclosed that possibly accused Dilip Mukherjee after taking out his revolver from his kit box opened fire aiming at Ganesh. It is also in his evidence that they suspected that Dilip Mukherjee might have opened fire aiming at Ganesh because of his previous enmity with Ganesh. (24.) We are of the considered view that surmise and conjecture cannot take the place of proof. From the above discussion we find that the prosecution could not establish the presence of the appellant at the alleged time and place of occurrence. The learned Trial Judge misconstrued the statement of the accused recorded under Section 313, Cr.P.C. and failed to appreciate the oral evidence of the witnesses. We find that the ocular version regarding the presence of appellant suffers from inconsistencies and improbabilities. (25.) As regards the report of the F.S.L. (Ext.-15) the bullet was marked as Exhibit C and another packet contained two fired cartridges of .38" KF revolver which were marked as Exhibit B4 and B5. The opinion of the F.S.L. runs thus:- "It is not unlikely that Exhibit C and either of B4 or B5 were originally belonging to the same .38" cartridge. However, definite opinion in this regard, cannot be given due to insufficient data." (26.) It further appears that Mr. A. Bhattacharya, the arms expert, holding the post of Inspector of Police, who examined the seized revolver, was not examined by the prosecution. However, definite opinion in this regard, cannot be given due to insufficient data." (26.) It further appears that Mr. A. Bhattacharya, the arms expert, holding the post of Inspector of Police, who examined the seized revolver, was not examined by the prosecution. It is worth mentioning here that the Autopsy Surgeon (P.W. 11) has stated in his cross-examination that the injuries were caused due to rifle shot (gun shot). It is also in his evidence that if a person is shot at from a close distance in sleeping condition, expectedly there will be some blood clots, but, in the instant case no such blood clot was found. Mr. Mukherjee has drawn our attention to the opinion of the Autopsy Surgeon that there is no opinion as to whether it was a case of homicide or suicide. The opinion of the F.S.L., therefore, cannot be treated as conclusive proof and the non-examination of the arms expert also is an infirmity from which the prosecution case suffers. (27.) As regards the alleged recovery of the revolver in question, it is in evidence of P.Ws. 21,24,25,29 that after the alleged occurrence the appellant were fleeing away towards Keshpur and a police contingent chased him and ultimately after crossing a river apprehended the appellant. It is in the evidence of P.Ws and that there were exchange of fiting, but, none of the police officers sustained any injury. The police personnel also while chasing the appellant opened fire, but, the appellant also did not in the process sustained any injury. A separate police case bearing Koshpur P.S. Case No. 71 of 1995 was started and the seized revolver in connection with that case has also been seized and produced at the time of trial of the Instant case before the learned Court below. (28.) As regards the identity of the revolver P.W. 1 in his cross-examination has stated that the Mat Ext.-1 (service revolver) was numbered as MI-368 by using white coloured Asian Paints. But P.W. 20 has stated in his cross-examination that although the Mat. Ext. -1 was supposed to contain the words figuring .38 volt, but it did not then contain these marks. It is also in his evidence that the endorsement of Fatick Mondal made by him in the register while receiving the revolver did not bear any "bat" number or revolver number. Ext. -1 was supposed to contain the words figuring .38 volt, but it did not then contain these marks. It is also in his evidence that the endorsement of Fatick Mondal made by him in the register while receiving the revolver did not bear any "bat" number or revolver number. So it is clear from the evidence of the witnesses that the alleged marking by Asian Paints on the revolver as told by P.W. 1 does not find corroboration from the evidence of other P.Ws. P.W. 28 is the witness for the alleged seizure of the service revolver from the possession of the appellant. P.W. 28 could not say as to who collected the pistol from Dilip or wherefrom of his body it was collected. He has stated that he did not go though the seizure list which he signed and at that time the police officer told him that whatever was recovered it was written. He has also stated that the police officer told that Dilip was caught and for that he was required to put his signature. It is also in his evidence that others also signed accordingly. It is not in the evidence of the witnesses for the seizure of the revolver that they signed on any label pasted on the revolver. Under such circumstances, we are of the considered view that the prosecution could not prove the identity of the service revolver which allegedly belonged to P.W. 1 Fatick Mondal. (29.) As regards the alleged recovery of the service revolver from the possession of the appellant from Keshpur, no charge was framed against the appellant under Section 25 of the Arms Act for having possession of the revolver. In respect of the Keshpur P.S. case No. 71 of 1995 also no charge was framed under Section 25 of the Arms Act. Because of the non-framing of charge under Section 25 of the Arms Act the alleged recovery of the service revolver from the possession of the appellant is bound to be viewed with suspicion. (30.) As regards the charge under Section 27 of the Arms Act, prosecution could not produce the sanction order of the District Magistrate for launching prosecution under Section 27 of the Arms Act. It is also not in the evidence of the I.O. (P.W. 30) that he obtained sanction from the District Magistrate before submitting the charge sheet. (30.) As regards the charge under Section 27 of the Arms Act, prosecution could not produce the sanction order of the District Magistrate for launching prosecution under Section 27 of the Arms Act. It is also not in the evidence of the I.O. (P.W. 30) that he obtained sanction from the District Magistrate before submitting the charge sheet. This was a legal infirmity from which the prosecution-case suffered. (31.) After considering the evidence on record and giving anxious consideration to the submission of Mr. Mukherjee and Mr. Samad, we find that the prosecution case suffers from severe inconsistencies and inherent improbabilities. Prosecution could not prove the presence of appellant at the alleged time and place of the occurrence. The chain of circumstances was not complete and the link evidence was missing at places. The prosecution evidence is not worthy of credence and does not inspire confidence. (32.) We are therefore, of the considered view that prosecution could not bring home the charges against the appellant and the appellant is found not guilty of the charges levelled against him. (33.) The appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted of the charges and be released from this case immediately. (34.) Let a copy of this judgment be sent to the Correctional Home where the appellant is now detained. (35.) The L.C.R. along with the copy of this judgment be sent to the learned Trial Court immediately.