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2010 DIGILAW 727 (CAL)

STATE OF WEST BENGAL v. Buddhu Mondal

2010-06-30

AMIT TALUKDAR, M.K.CHAUDHURI

body2010
JUDGMENT Chaudhuri, J. 1. THIS is a Government Appeal filed on behalf of the State of West Bengal under Section 378 of the Code of Criminal Procedure and is directed against the judgment and order of acquittal passed by Sri D.K. Roy, the learned Assistant Sessions Judge, Malda in Sessions Trial No.38 of 1988. By the impugned judgment and order under appeal, the learned Assistant Sessions Judge on 14.10.88 in Sessions Trial No.38 of 1988 recorded an order of acquittal in favour of the Respondent, Buddhu Mondal, in respect of the charge of Section 304 of the Indian Penal Code. 2. BEING dissatisfied with and aggrieved by the judgment and order of acquittal passed by the learned Assistant Sessions Judge, State has preferred this Appeal being G. A. No. 32 of 1989. A Division Bench of this Court on 28.08.1989 granted leave to the State of West Bengal to prefer an Appeal against such order of acquittal consequently, when the Appeal was admitted by the same Division Bench on 6.11.1989 an order of rearrest and release on fresh bail was directed in respect of the said accused/Respondent. 3. SINCE none appeared on behalf of either the State or the Respondent, we requested Sri Subir Ganguly, the learned Panel Lawyer, to act as State Defence and sought the assistance of a young member of the Bar, Ms. Archita Sen, to assist us as amicus curiae. With their assistance we have considered the materials and evidence-on-record and proceeded to dispose of the Appeal accordingly. 4. THE case of prosecution, in short, is that there was a quarrel in front of the house of Khoka Mahaldar on 25.12.1981 in connection Patel and Ors., 2004 SCC (Cri) 2032 with playing of marbles between Gana Mahaldar and Tarka. At that point of time the victim Khoka Mahaldar and others went there to stop them from quarreling. At the relevant time Tetru assaulted Paran with a hasua and the accused/Respondent Buddhu Mondal assaulted Khoka with a piece of bamboo over the head of Khoka. Khoka fell down. Both Tetru and accused Buddhu Mondal took shelter in the house of Satish Mondal, P.W.5. Khoka was being brought to the hospital and on the way he expired. There is sum and substance of the First Information Report for which charge under Section 304 of the Indian Penal Code was framed against Accused Buddhu Mondal. Khoka fell down. Both Tetru and accused Buddhu Mondal took shelter in the house of Satish Mondal, P.W.5. Khoka was being brought to the hospital and on the way he expired. There is sum and substance of the First Information Report for which charge under Section 304 of the Indian Penal Code was framed against Accused Buddhu Mondal. THE learned Trial Court examined as many as thirteen witnesses. THE Accused was examined under Section 313 of the Cr. P. C. Thereafter, the learned Assistant Sessions Judge delivered his judgment holding that the Accused Buddhu Mondal was not found guilty of the offence punishable under Section 304 of the Indian Penal Code. By virtue of Section 386 of the Code of Criminal Procedure, this Court is empowered to re-appreciate the evidence already recorded. 5. AS stated earlier, the question that has come up for consideration is whether the judgment and order of acquittal passed by the learned Court below is perverse and suffers from illegality or infirmity or misconception of facts and law. At the very outset it appears from the record that P.W.1 Paran Mahaldar is one of the injured witnesses. He has stated that Tetru with a piece of bamboo assaulted Khoka Mahaldar and the Accused Buddhu Mondal being accompanied with his father Tetru went to the house of Satish. This witness has turned hostile for the prosecution. On a close careful scrutiny of the evidence of P.W.1, Paran Mahaldar, who has lodged the F.I.R., it is crystal clear that Buddhu Mondal did not assault Khoka with a piece of bamboo as alleged in the F.I.R. There is no denial that the F.I.R. is not the substantive evidence. It is only necessary to contradict or corroborate the same during the course of trial. So the evidence of P.W. 1 does not find any corroboration in the averment of the F.I.R. P.W.4, Uma Kanta Mahaldar, has also been declared hostile by the Prosecution. On a close perusal of the evidence- both in the Examination-in-Chief and also the cross-examination nothing incriminating material against the Accused Buddhu Mondal is forthcoming. P.W. 3, Hema Mahaldar, upon which Mr. Subir Ganguly, the learned Counsel for the State/Appellant, has made sufficient emphasis, has stated in her cross-examination that two hours after they reached the spot Paran was assaulted. Finding the bleeding injury, she became nervous. They began to give first aid to him. P.W. 3, Hema Mahaldar, upon which Mr. Subir Ganguly, the learned Counsel for the State/Appellant, has made sufficient emphasis, has stated in her cross-examination that two hours after they reached the spot Paran was assaulted. Finding the bleeding injury, she became nervous. They began to give first aid to him. When they were giving first aid to him suddenly she heard a cry of her father-in-law and turning, she found that her father in law was lying down on the ground. So her evidence in the cross-examination sufficiently proves that she did not see the occurrence of assault by Buddhu Mondal upon the victim Khoka. Although she had stated in her cross-examination that she was not examined by the Investigating Officer, subsequently she had admitted that she told the Investigating Officer that hearing the shout of Paran to the effect that Paran was being injured by Tetru, elder brother of her husband rushed towards that and she followed him. So the evidence of this P.W.3 is not sufficient enough to convict the Accused Buddhu. Therefore, Mr. Ganguly's insistence upon the evidence of P.W.3 finds no merit. The learned Trial Court was perfectly right in not relying the evidence of P.W.3. 6. P.W.4, Uma Kanta Mahaldar and P.W.5, Satish Chandra Mondal did not see the occurrence. They are not the eye witnesses to the occurrence. They had been reported about the incident by Paran and Fagu. But the evidences of P.W.1 and P.W.2 do not denote that they reported the incident to P.W.4, Uma Kanta Mahaldar, and P.W.5, Satish Chandra Mondal. P.W.6, Subol Mondal, has been declared hostile. Nothing is forthcoming from his evidence to implicate the Accused/ Respondent, Buddhu Mondal. P.W.7, Khoka Karmakar, did not see the occurrence of assault by Buddhu upon Khoka. He has stated in his evidence that Buddhu did not say anything. P.W.8, Rakhal Majhi, is not an eye witness to the occurrence. He heard from the villagers about the incident. P.W.9, Rashik Mahaldar, is not also an eye witness. He stated that he found Buddhu and Tetru inside the house of Satish Mondal. So his evidence is of no help to the Prosecution. P.W.10, Sudha Mahaldar, is a seizure witness. P.W.11, S.I. K.K. Chakraborty, is the Investigating Officer of the case. He has stated that he has found that the villagers surrounded Tetru Mondal and Buddhu Mondal. P.W.12 is Dr. So his evidence is of no help to the Prosecution. P.W.10, Sudha Mahaldar, is a seizure witness. P.W.11, S.I. K.K. Chakraborty, is the Investigating Officer of the case. He has stated that he has found that the villagers surrounded Tetru Mondal and Buddhu Mondal. P.W.12 is Dr. D. L. Samajdar who held post mortem examination over the dead body of Khoka Mahaldar and submitted his post mortem report. He had stated that death, in his opinion, was due to head injury which was ante-mortem and homicidal in nature. Mr. Ganguly, the learned Counsel for the State/Appellant, has also laid much emphasis on the evidence of P.W-13, Gana Mahaldar. He cannot say the date and month of the occurrence although he stated that Accused Buddhu Mondal with a piece of bamboo assaulted Khoka. His evidence appears to be unacceptable on account of lack of evidence of reliable eye witness. He has categorically stated in his cross- examination that when they were playing marbles, no person watched their play. He stated that on the date of occurrence he was examined in the inner courtyard of Satish's house. He cannot tell the date of occurrence. The learned Court below has observed in his judgment that his statement with regard to his examination by the Investigating Officer is not correct in view of the fact that he was examined by the Investigating Officer not on the date of occurrence but more later than that, that is, on 21.12.1982, but the occurrence took place on 25.12.81. This inordinate delay for examination of the witnesses has not at all been explained. 7. IN a decision reported in 2004 SCC (Cri) 2032 in the case of Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel and Ors., it was clearly observed by the Hon'ble Supreme Court of India that in absence of proper explanation given by the Investigating Officer for the delayed recording of statements, there is sufficient material to doubt the prosecution case. IN that case the incident took place on 13.11.1985, but the witnesses were examined by the Investigating Officer on 15.11.1985. The delay of two days was not at all explained. Therefore, the Hon'ble Appex Court observed that there was a serious mistake on the part of the Prosecution. IN that case the incident took place on 13.11.1985, but the witnesses were examined by the Investigating Officer on 15.11.1985. The delay of two days was not at all explained. Therefore, the Hon'ble Appex Court observed that there was a serious mistake on the part of the Prosecution. IN another decision reported in 2008 (10) SCC 450 in the case of Ghurey Lal v. State of Uttar Pradesh, the Hon'ble Appex Court elucidated the principle of Sections 378 and 386 of the Cr.P.C. According to the said observation, the Appellate Court may review evidence in an Appeal against acquittal under Sections 378 and 386 of the Cr.P.C. The power of review the evidence of Appellate Court is wide and the Appellate Court can re-appreciate the entire evidence on record and review the Trial Court's conclusion with respect to both facts and law. It has further been observed that the Appellate Court must always give proper weight and consideration to the finding of the Trial Court. Therefore, the observation of Trial Court with regard to the evidence of P.W. 13 upon which Mr. Subir Ganguly, the learned Counsel for the State/Appellant has repeatedly emphasized, finds sufficient merit. The learned Trial Court has categorically observed that the evidence of P.W. 13 with regard to his statement of assault by Accused Buddhu upon Khoka is doubtful. The evidence of P.W. 13 further discloses that after the play he went home and he was there till police arrived and he did not go out till then. Therefore, the testimony of P.W. 13 is quite doubtful as to whether it is possible for him to see the occurrence of assault upon the deceased Khoka by accused Buddhu Mahaldar. To sum up P.W.1, P.W.2 and P.W.6 have turned hostile; P.W.7, P.W.8 and P.W.9 did not see the occurrence. P.W.4 is not the eye witness. She has been reported, but her statement of reporting finds no corroboration. P.W.3, Hema Mahaldar is also a reported witness, that is, a witness who has been reported about the incident. 8. MS. Archita Sen, the learned Amicus Curiae (appearing for the Respondent) has submitted that the judgment and order of conviction passed by the learned Assistant Sessions Judge, Malda does not suffer from any perversity, illegality and misconception of facts and law. 8. MS. Archita Sen, the learned Amicus Curiae (appearing for the Respondent) has submitted that the judgment and order of conviction passed by the learned Assistant Sessions Judge, Malda does not suffer from any perversity, illegality and misconception of facts and law. Considering the materials-on-record and having regard to the judgment and order of acquittal passed by the learned Assistant Sessions Judge, Malda, we do not find any illegality or perversity in the observation of the learned Court below. Accordingly, the judgment and order of acquittal passed by the learned Court below call for no interference and the same is liable to be affirmed. 9. THIS Appeal is, therefore, dismissed. Bail bond stands discharged. Department is directed to send down the Lower Court Records of this case along with a copy of this judgment to the learned Court below forthwith. Talukdar, J. : I agree.