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2009 DIGILAW 856 (CAL)

Ajoy Sen Alias Mahanta v. STATE OF WEST BENGAL

2009-12-01

ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE

body2009
Judgment : ASHIM KUMAR BANERJEE, J. (1.) FACTS 1.1 The facts reveal, on April 7, 2000 both Tissue and Mahanta along with two other persons being armed with firearms raided the office of the victim Shri Bijan Kundu, a promoter in the said area. At that time Bijan was sitting with Shyamal Mondal, Achintya Banerjee and Laxmi Manna. As per the written complaint made by one Jakir Hossain Mullick at the instance of the father of Bijan, the anti-socials not only shot Bijan but also exploded bombs before they fled away by auto rickshaw. The bullet struck the right shoulder of Bijan. The explosion caused injury to two other persons. The complaint was made at 10:20 p.m. on the said date whereas the incident occurred at about 08:40 a.m. 1.2 The police arrested all the accused including Tissue and Mahanta and charge-sheeted them. All of them pleaded not guilty and faced trial. The learned Additional Sessions Judge, Alipure, 9th Court held Tissue and Mahanta guilty of the charges and directed them to suffer rigorous imprisonment for ten years and a fine of rupees five thousand each and in default to suffer further term of two years. The learned Additional Judge, having found no cogent or sufficient evidence, acquitted two other accused Dulal Parui and Amal Sarder and discharged them from their respective bail bonds. (2.) EVIDENCE 2.1 We have perused the judgment and order of the learned Judge. We have independently examined the evidence on record. Let us analyze the evidence so came out in trial in our own way. 2.2 JAKIR Jakir Hassain Mullick was the complainant who made written complaint to the police at the instance of father of Shri Bijan Kundu, the victim. He was a businessman, running bakery business. When he was in his factory on the fateful day he heard about the incident. He rushed to the office of Bijan and then took him to the hospital along with others and got him admitted there. He knew Achinta, an eyewitness but not Laxman Manna. He did not have any occasion to talk to the victim Bijan at the hospital or before. He did not hear anything about Tissue from Bijan. 2.3 SATYAJIT CHAKRABORTY Satyajit alias Partha was declared hostile. He did not see the occurrence. He deposed that he did not name the accused before the police. He did not have any occasion to talk to the victim Bijan at the hospital or before. He did not hear anything about Tissue from Bijan. 2.3 SATYAJIT CHAKRABORTY Satyajit alias Partha was declared hostile. He did not see the occurrence. He deposed that he did not name the accused before the police. He also did not state to the police that he had heard the gunshot. He also could not identify the accused persons. 2.4 BIJAN KUNDU 2.4.1 Bijan Kundu was the victim of the incident. He was promoter by profession. He was carrying on business under the name and style of M/s. A. B. Construction. Shyamal, Laxman and Achinta were sitting with him at his office when the appellants along with two others came to his office being armed with firearms. Tissue hit his left forehead with the butt of revolver for which he had sustained bleeding injury. Tissue then shot at his chest with the revolver which hit on his right shoulder. He lost his sense. He fell on the table. He had profuse bleeding. He later on learnt from one Sona Mukherjee that the accused had left the place after throwing bombs in front of his shop situated in the said premises. Thereafter Jakir came. Bijan told him that Tissue shot at him. Jakir and Achinta took him to A.M.R.I. Hospital. The bullet was still inside his left chest and could not be removed as per the doctors advice. As a result he became paralytic below his chest. He could not move. He attended the natures call through artificial device. He went to Velore thrice for treatment, but in vain. 2.4.2 Before the incident for about a year Tissue used to make phone call to him demanding money as and by way of an extortion, threatening him to kill. In cross-examination, Bijan deposed that his brother had a shop of Fast Food Centre nearby. His brother Bacchu Kundu and Sona Mukherjee were in the shop at that time. The doctor after the medical examination opined that the bullet should not be removed as there was a possibility of death in case of such an attempt. He was a small promoter. He made only two constructions before the incident one in 1996 and other in 1998. He denied having refused to depose in this case or executed any bond to the said effect. He was a small promoter. He made only two constructions before the incident one in 1996 and other in 1998. He denied having refused to depose in this case or executed any bond to the said effect. He told about the incident to the doctors who treated him at ICCU. He did not hand over his wearing apparel to the police. The accused shot him at a distance of 2/3 feet. He did not report to the police that Sona Mukherjee had told him that the assailant had fled away after hurling bombs. He told the police that one of the assailants was Mahanta. He denied having been influenced by the police to name Mahanta. 2.5 PRANAB 2.5.1 Pranab Kundu alias Bachhu was the younger brother of Bijan. At the time of the incident he was in his shop at ground floor. He was standing in front of his shop at about 08:30 to 08:40 p.m. The incident took place on the back side of his shop in the said premises. An auto rickshaw came wherefrom four boys alighted being armed with firearms in their hands and enquired of Bijan from him. Before he could reply they went through the passage adjacent to the shop and entered the office room of Bijan. Within a short moment he heard the gun shot and saw two of the boys fleeing from the front side and the other two from the back side. He found his brother being brought by two persons. He found bullet injury on his right shoulder. He could identify Tissue and Mahanta and identified them in Court. His brother was first taken up to C.M.R.I. and then A.M.R.I. Bijan told him that out of four assailants Tissue shot at him in presence of three others. 2.5.2 Bacchu gave explanation for not rushing to the place of occurrence as according to him everything happened within a minute and he could not do anything. Initially, he did not name the persons before the police. 2.6 DR. SUMAN GHOSH Dr. Suman Ghosh attended the victim at A.M.R.I. hospital at about 09:20 p.m. On the said date Achinta made statement about the incident. According to him, there was no exit point of the bullet in the body. He supported the medical report given by him which was tendered as exhibit. 2.6 DR. SUMAN GHOSH Dr. Suman Ghosh attended the victim at A.M.R.I. hospital at about 09:20 p.m. On the said date Achinta made statement about the incident. According to him, there was no exit point of the bullet in the body. He supported the medical report given by him which was tendered as exhibit. He also deposed that the victim did not disclose the name of the assailants although he was conscious and oriented. 2.7 DR. SUBHAS TODI Dr. Todi also treated Bijon at A.M.R.I. He also stated that Bijon did not make any statement although he was alert, sound and conscious. 2.8 The police officers who investigated into the matter and another doctor also deposed for the prosecution. (3.) ANALYSIS OF EVIDENCE Close analysis of the incident as came out in evidence reveals that the incident occurred within a very short span of time. Bacchu first saw the assailants alighting from auto rickshaw being armed with fire arms. They enquired of Bijan and then rushed to the office of Bijan and shot at him. Although Bijan claimed that he had bleeding injury on his forehead the medical report did not support the same. The factum of gunshot was proved. Infact, Bijan is still carrying the bullet with him on his body and would have to probably live with the same throughout his life. It is true that Bijan did not name the assailants to the doctors. There might be two reasons for the same, Achinta narrated the incident to the doctors in his presence or his mental framework did not permit such as he was possibly still under trauma specially when the doctors opined that the bullet could not be removed from his body as it would involve life risk. It is not unusual. A businessman while talking to the visitors was suddenly confronted and was shot. He became unconscious. Even if he gained consciousness he might be under trauma. A person carrying on business having his family including his wife would think twice to name the assailants before the police as it might cause further trouble. To come to his normal sense he would need sometime to adjust his mental framework. Hence, we do not find anything unusual if Bijan did not name the assailants to the police or the doctors contemporaneously. Similar was the case of Bacchu, the younger brother. To come to his normal sense he would need sometime to adjust his mental framework. Hence, we do not find anything unusual if Bijan did not name the assailants to the police or the doctors contemporaneously. Similar was the case of Bacchu, the younger brother. He was also having a shop at the said premises. Obviously, he would think twice to name the assailants who might be known in the area for their anti-social activities. (4.) APPELLANTS CONTENTION 4.1 Mr. Sekhar Bose, learned senior counsel in support of the appeal raised the following issues :-i) Victim did not disclose the names of the assailants contemporaneously. ii) Achinta and other eyewitnesses were not cross-examined who could throw some light on the issue. iii) The scribe of the F.I.R. could not identify the assailants. iv) Neither Bijan nor any of the eyewitnesses made the written complaint to the police. v) No blood was found and/or seized by the police from the place of occurrence. vi) No blackening or charring mark was found. vii) The F.I.R. was not contemporaneously sent to the concerned Magistrate and there had been considerable delay on that score. 4.2 As and by way of alternative, Mr. Basu contended that even if it was held that Tissue made the gunshot none of the witnesses deposed anything adverse of Mahanta and Mahanta should have been acquitted on the said ground alone specially when the other two were acquitted in absence of adequate evidence. (5.) PROSECUTIONS CONTENTION 5.1 The learned Public Prosecutor while opposing the appeal contended that the police tried their best to bring the eyewitnesses. Several notices were given to Shyamal and Mokhtar being charge-sheet witnesses no.5 and 8 respectively. They did not turn up. In this regard he relied on the Apex Court decision in the case of State of Andhra Pradesh VS-S. Rayappa and Ors. reported in 2006, Volume-II, Supreme Court Cases (Criminal), Page-353. 5.2 The learned Public Prosecutor further contended that there might be some lapses on the part of the police officials in carrying out the investigation. That would per se not destroy the charges specially when the victim himself and his younger brother one of the eyewitnesses, at least to the extent of presence of the accused being armed with firearms, established the same. That would per se not destroy the charges specially when the victim himself and his younger brother one of the eyewitnesses, at least to the extent of presence of the accused being armed with firearms, established the same. 5.3 On the issue of delay in sending F.I.R. the learned Public Prosecutor cited two Apex Court decisions in the case of Sahdeo and Others VS- State of Uttar Pradesh reported in 2004, Supreme Court Cases (Criminal), Page-1873 and A.N. Venkatesh and Another VS- State of Karnataka reported in 2005, Supreme Court Cases (Criminal), Page-1938. 5.4 On the issue of failure on the part of the investigative agency the Public Prosecutor contended that once the crime was established such failure could not be fatal. In support of his contention he relied upon another Apex Court decision in the case of State of Himachal Pradesh VS- Mast Ram reported in 2004, Volume-VIII, Supreme Court Cases, Page-660. 5.5 On the issue of Mahanta, the learned Public Prosecutor contended that Mahanta was also armed with firearms. He came with Tissue. He was all through out present when Tissue shot at Bijan. Hence under Section 34 of the Indian Penal Code Mahanta was equally responsible. In this regard he relied upon the Apex Court decision in the case of Girija Shankar VS-State of Uttar Pradesh reported in 2004, Supreme Court Cases (Criminal), Page-863. (6.) REPLY While giving reply Mr. Bose contended that neither there was any case made out in the prosecution on fear psychosis nor the same could come within the scope of consideration. On the presence of Mahanta, he reiterated what had been submitted by him earlier. He, however, relied on a recent decision of the Apex Court reported in 2008, Volume XV, Supreme Court Cases, Page-501 (Arun VS- State by Inspector of Police, Tamil Nadu) (7.) CASES CITED AND DISCUSSED Let us first deal with the cases cited at the Bar. i) All India Reporter, 1945, Privy Council, Page-118 (Mahbub Shah VS- Emperor) :-This decision was cited to support the interpretation of Section 34 of the Indian Penal Code by the Public Prosecutor. The Privy Council observed that if there was any common intention to commit the crime even though there was no pre-concerted plan to shoot the co-accused would be reasonable for the incident. In the instant case, Mahanta accompanied Tissue along with firearms. The Privy Council observed that if there was any common intention to commit the crime even though there was no pre-concerted plan to shoot the co-accused would be reasonable for the incident. In the instant case, Mahanta accompanied Tissue along with firearms. Even if there was no evidence that he knew that Bijan would be shot by Tissue, his very presence and that too without any attempt to resist Tissue, would automatically suggest that he was a part of the crime and he was liable for conviction under Section 34. ii) 1994, Supreme Court Cases (Criminal), Page1551 (Arjun Marik and Others VS- State of Bihar) :-In this case the Apex Court observed that quite often there were valid reasons for delay in the despatch of the F.I.R. to the learned Magistrate and it is not always a circumstance of which the entire prosecution case may be said to be fabricated but it all depends on the facts and circumstances of each case where circumstance of delay may lead to serious consequence. In the instant case, the complaint was lodged within two hours. The sending of F.I.R. might have been delayed in this case which remained unexplained, that, in our view, could not make the entire case fatal specially when the incident as well as the involvement of the accused in it was proved by the victim himself. iii) Sahdeo and Others VS- State of Uttar Pradesh (2004, Supreme Court Cases (Criminal), Page-1873) and A.N. Venkatesh and Another VS-State of Karnataka (2005, Supreme Court Cases (Criminal), Page-1938) :- These two decisions of the Apex Court were also cited on the issue of delay in sending the F.I.R. to the learned Magistrate. The Apex Court observed that though the investigation conducted by prosecution was highly unsatisfactory there was convincing evidence involving the accused for causing death of the victims. Similarly absence of stain on cloths found on the dead body by itself would not be a sufficient ground for discarding other testimony. iv) State of Himachal Pradesh VS-Mast Ram (2004, Volume-VIII, Supreme Court Cases, Page-660) :-This case was also cited to support the contention that failure on the part of the investigative agency could not per se be fatal. Here the bullet recovered from the body was not sent for ballistic expert. iv) State of Himachal Pradesh VS-Mast Ram (2004, Volume-VIII, Supreme Court Cases, Page-660) :-This case was also cited to support the contention that failure on the part of the investigative agency could not per se be fatal. Here the bullet recovered from the body was not sent for ballistic expert. The Apex Court observed, when the prosecution established that the deceased died of gunshot injuries such lapses could not be fatal. v) Girija Shankar VS- State of Uttar Pradesh (2004, Supreme Court Cases (Criminal), Page-863) :-This case was cited on interpretation of Section 34 of the Indian Penal Code. vi) Andhra Pradesh VS-S. Rayappa and Ors. (2006, Volume-II, Supreme Court Cases (Criminal), Page-353) :-In paragraph 8 of this decision the Apex Court observed that when there was fear psychosis it was not expected of any witness to come and depose about the incident even though they might have seen. Non-examination of independent witness in such a situation would be no ground to discard the otherwise creditworthy testimony which inspired confidence. vii) Arun VS-State by Inspector of Police, Tamil Nadu (2008, Volume XV, Supreme Court Cases, Page-501) :-Mr. Bose to support his contention that mere presence of Mahanta was not enough to convict him cited this decision. The Apex Court in the said case observed that there was no evidence against the appellant available on record to show sharing of any common intention to commit such crime. The Apex Court also relied on the finding of the High Court that there was no evidence available on record that the appellant entered in the house of the deceased being armed. Possession of arms by the accused was also found to be doubtful. Considering such evidence the Apex Court observed that the appellant could not be held guilty under Section 34 of the Indian Penal Code. In the instant case, presence of Mahanta was proved. The fact that he was armed with firearms was also proved. The evidence of the witnesses could not be shaken in cross-examination on that score. The very fact that all four of them came to the place, all being armed with firearms and they all rushed to the office of the victim and one of them shot him and then all of them fled away, was proved beyond doubt. On a sum total of this evidence we could not convince ourselves to accept the contention of Mr. On a sum total of this evidence we could not convince ourselves to accept the contention of Mr. Bose on the issue of Mahanta as we find no resemblance with the incident so narrated by the Apex Court in the case of Arun (Supra). (8.) Our view 8.1 As we have observed earlier, both the brothers were in trauma, they could not spell out names of the accused contemporaneously either to the police or to the doctors. In presence of Bijan, Achinta named the assailants to the doctors. Bijan did not raise any protest, at least not came out in evidence. It is also found that according to the defence Bijan was initially reluctant in giving evidence before the Court. This fact would clearly support the contention of the learned Public Prosecutor that there was fear psychosis prevalent not only on the date of the incident but also at the time of trial. In any event, both the brothers subsequently mustered up courage and came to Court and deposed in most clear language which could not be shaken during cross-examination. We are unable to upset the conviction. We fully appreciate the contention of Mr. Bose that there had been lapses and failure on the part of the investigative agency. But that would not demolish or could not demolish the entire case when the victim himself and his brother categorically deposed as against the appellants supporting the charges brought against them. Minor anomaly and/or discrepancy in evidence would not per se amount to acquittal of the accused. 8.2 As regards the suo motu rule issued by the Division Bench for enhancement of sentence to life imprisonment, we have carefully examined the evidence on record and considered the facts and circumstances of the case. We are of the considered view that the learned Trial Judge was justified in recording the conviction and sentence under the impugned judgment. There is no ground to enhance the sentence and, as such, we discharge the suo motu rule issued in connection with the hearing of this appeal. (9.) RESULT 9.1 The appeal fails and is, hereby dismissed. 9.2 A copy of this judgment be sent to the correctional home. 9.3 A copy of the judgment along with lower Court reports be sent down at once. 9.4 Urgent xerox certified copy will be given to the parties, if applied for.