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2015 DIGILAW 126 (CAL)

Naresh Kumar (In Jail) v. State of West Bengal

2015-02-16

ASHIM KUMAR ROY, ISHAN CHANDRA DAS

body2015
Judgment :- Ashim Kumar Roy, J. In the aforesaid two statutory appeals, subject matter of challenge are the conviction of the appellants Jagannath Kumar and Naresh Kumar under section 302/34 IPC and sentence of imprisonment for life. Since both the appeals were arising out of the self-same judgment and order, both were taken up for hearing together and are disposed of by this common judgment. In the trial held before the learned Additional Sessions Judge, 2nd Court, Purulia, the appellants were placed on trial to answer charges under section 302/34 IPC and section 25/27(1) of the Arms Act. According to prosecution, the victim Swapan Kumar was a night guard at Charakari Agrabal Hospital. Since the victim during his life time used to protest against various illegal activities of the appellants Jagannath Kumar and Naresh Kumar they became hostile towards him and also threatened to kill him. On the fateful day at around 6 am, when the victim went to Nutan Bandh a tank in the village to take his bath, both the appellants Jagannath Kumar and Naresh Kumar came there in a motorcycle and shot him thrice and when the victim sustained three gun shot injuries on his right leg, upper side of right eye and on the back and due to such injuries, he died. PW/1, Bipin Kumar, brother of the deceased and the informant, PW/5, Bishnu Kumar, another brother of the deceased, PW/9, Kamala Kumar, wife of the deceased and the PW/10, Kalpana Kumar, wife of the brother of the deceased, claimed to be the eye-witnesses to the occurrence. Beside those witnesses, three witnesses were declared hostile, they were PW/2, Madhab Kumar, PW/4, Simanta Kumar and the PW/8, Muktiram Kumar. PW/3, PW/6, Durga Chandra Kundu and PW/7, Kedar Kumar were the witnesses to the inquest. While PW/11 is the Autopsy Surgeon and PW/12 is the Judicial Magistrate, who recorded the statement of witnesses under section 164 Cr.P.C., the PW/13 and PW/14 are the Investigating Officer of the case. While Mr. Jayanta Narayan Chatterjee appeared on behalf of the appellant Naresh Kumar, appellant in CRA No. 501 of 2011, since none appeared on behalf of the appellant Jagannath Kumar in Criminal Appeal No. 597 of 2011, this court engaged Mr. Niladri Sekhar Ghosh, a lawyer in the State panel, to conduct his appeal at the cost of the State. While Mr. Jayanta Narayan Chatterjee appeared on behalf of the appellant Naresh Kumar, appellant in CRA No. 501 of 2011, since none appeared on behalf of the appellant Jagannath Kumar in Criminal Appeal No. 597 of 2011, this court engaged Mr. Niladri Sekhar Ghosh, a lawyer in the State panel, to conduct his appeal at the cost of the State. On perusal of the materials on record, it appears, the case of the prosecution rest on the evidence of the eye-witnesses to the occurrence namely PW/1, PW/5, PW/9 and the PW/10. However, from the side of the defence, no witness was examined and from the trend of the cross-examination and the answer of the appellants during their examination under section 313 Cr.P.C. it appears their claim was one of innocence and false implications. In the trial although the appellants were convicted under section 302/34 IPC, but they were acquitted of the charge for the offence punishable under section 25/27 (1) of the Arms Act. It appears they were acquitted for the offence under the Arms Act for the reasons that without obtaining sanction from the appropriate Statutory Authorities, charge sheet was submitted thereunder by the Investigation Officer. Assailing the impugned order of conviction, it was urged from the side of the appellants such order suffers from following infirmities, a) The PW/1 cannot be accepted as an eye-witness to the occurrence, since there is no remote indications in the First Information Report that the alleged incident happened in his presence. b) Other three eye-witnesses cannot be eye-witnesses to the occurrence otherwise their presence would have been reflected in the FIR. c) Although it was claimed the appellant was hostile to the deceased for his protest against their wrong doings and various mischievous activities and the appellant also threatened to kill him, but no evidence was brought on record to show that any complaint was lodged to the police as regards to the same. d) No independent witness was examined and all the eye-witnesses to occurrence including the informant PW/1 are highly interested witnesses, who are close relations of the deceased. d) No independent witness was examined and all the eye-witnesses to occurrence including the informant PW/1 are highly interested witnesses, who are close relations of the deceased. The learned counsel for the appellant, Naresh Kumar further contended according to the PW/1 at the time of the incident he was attending the nature’s call near the railway track which was about 50 cubits away, but in the FIR such facts was not disclosed and that apart the said witness admitted that there was bank on all four sides of the bandh, therefore, it would not be possible for him to see the occurrence. While PW/1 claimed that after sustaining bullet injury his brother fell down in the water, but according to the PW/5, he fell down on the bank. It was further submitted, PW/5 first claimed that both the accused persons fired shot at the victim together but subsequently he changed his version and claimed the victim was assaulted one after another. It was also urged that there are huge discrepancies between the evidence of the PW/9 in court and in her statement recorded under section 164 Cr.P.C.. The learned counsel of the appellant Naresh Kumar further contended according to the PW/9 when the deceased was going to take his bath, their eldest daughter insisted to go with him and when the appellant enquired from her whereabouts of her deceased husband being apprehensive, she went to the bandh with their daughter on the lap, the learned counsel further contended, this story creates doubt as to the credibility of this witness inasmuch as when the daughter can accompany the father, why she should be on the lap of her mother. He contended according to the PW/9 the blood stained wearing apparels of her husband was seized by the police and such seizure was not disputed by the Investigating Officer of the case, still the same were not sent to the FSL. Lastly, it is contended since the appellants were acquitted of a charge for the offence punishable under the Arms Act, their conviction for killing the victim by gun shot injury cannot be sustained. So far as the first and second contentions are concerned, we do not find any merit in the same. Reading the FIR as a whole and from its tenor, there cannot be any second thought that the PW/1 claimed to be an eyewitness to the occurrence. So far as the first and second contentions are concerned, we do not find any merit in the same. Reading the FIR as a whole and from its tenor, there cannot be any second thought that the PW/1 claimed to be an eyewitness to the occurrence. So far as the First Information Report is concerned, the same is supposed to set the criminal law in motion and is not intended to be an encyclopedia of the background scenario of the incident and it is sufficient if the facts constituting commission of a cognizable offence is disclosed there. Merely because witnesses who have seen the occurrence were not named in the FIR, that is no ground to disbelieve them, if they found to be credible and trustworthy otherwise. We find from the content of the FIR that the broad features of the case has been clearly revealed. In this regard, the decision of the Hon’ble Supreme Court in the case of State of MP Vs. Dharkole reported in 2005 SCC Cri 225, Bhagaban Singh Vs. State of MP reported in 2002 SCC Cri 736, Chittarlal Vs. State of Rajasthan reported in 2003 SCC Cri 1377 and State of MP Vs. Mansingh reported in (2003) 10 SCC 414 be well referred. Furthermore, when in the FIR, broad facts of the case is clearly disclosed omissions of minor details is totally inconsequential. The next contention of the learned counsel of the appellant that although according to the prosecution witnesses, the relation between the deceased and the appellant were inimical and appellant threatened the deceased to kill him still the prosecution produced no evidence to show that over such incident any complaint was lodged to the police. We are not inclined to give any importance on the same, since the evidence of prosecution witnesses as regards to the same were never subjected to any challenge during their cross-examination. One of the major grievances of the appellants that no independent witness was examined and the alleged eye-witnesses to the occurrence were highly interested witnesses being the relations of the deceased. However, throughout the cross-examination of those eyewitnesses, whom the prosecution branded as interested witness, but nothing was brought out about their interestedness. The said witnesses are very close relations of the deceased, therefore, they are not likely to screen the real offender and falsely implicate the innocents. However, throughout the cross-examination of those eyewitnesses, whom the prosecution branded as interested witness, but nothing was brought out about their interestedness. The said witnesses are very close relations of the deceased, therefore, they are not likely to screen the real offender and falsely implicate the innocents. Furthermore, the term “interested” witness postulates that the persons concerned has some direct or indirect interest in ensuring the accused is somehow or other convicted either because he/she had some animus with him or for some other oblique motive. There is nothing on record that those witnesses has any animosity with the appellants except that their close relations was threatened by them to kill. The observations of the Apex Court in the case of Chowdhari Ramji Bhai Narasanghbhai vs. State of Gujarat reported in (2004) 1 SCC 184 ; Ashok Kumar Chaudhary vs. State of Bihar reported in 2008 Cri LJ 3030 would be quite relevant. Now coming to the contention of the learned advocate of the appellant that the evidence of PW/9 becomes doubtful, when in one hand she claimed that at that time her husband was going to take bath, their daughter insisted to go with him and on the other hand, she claimed to be present at the spot with their daughter on her lap. We do not find the same is at all relevant to test the credibility of PW/9. There is nothing on record that the said daughter is so grown up that taking her on the lap is unlikely. Merely because the daughter claimed to accompany his father that by itself does not indicate that it is not normal conduct of any parents to take her baby on the lap. Even though she can walk. In our opinion this is no discrepancy far less to touch the credibility of the witness. The discrepancy between the evidence of the witnesses pointed out to us from the side of the appellants are too minor and quite natural and requires no attention. After seizure of the blood stained wearing apparels of the deceased, the same are not sent to the FSL that may be a lapse on the part of the Investigating Officer. But that cannot be a ground to disbelieve the prosecution case. The Investigating Officer of the case was never cross examined on this score. After seizure of the blood stained wearing apparels of the deceased, the same are not sent to the FSL that may be a lapse on the part of the Investigating Officer. But that cannot be a ground to disbelieve the prosecution case. The Investigating Officer of the case was never cross examined on this score. Now, going through the evidence of eye-witnesses to the occurrence namely PW/1, PW/5, PW/9 and PW/10, we find that those witnesses vividly describe how and in what manner the deceased was assaulted by the appellants. We must say all the said witnesses withstand the vigorous and lengthy cross-examination by the defence and their cross-examination does not surface any infirmity. Much has been argued on the question how it was possible for the PW/1 to watch the occurrence because he was about 50 cubits away from the railway track while incident took place on the bandh which is surrounded by bank. We do not find that the evidence of the said witness that he was in a position to see the incident from the place where he was attending the nature’s call was challenged from the side of the defence nor even any suggestion was given to him except that he was cross-examined on the point as to the distance between the place of occurrence and the railway track and on the point about the bank. The learned counsel for the appellant also invited us to notice the inconsistencies between the deposition of the PW/9 in court and what have been stated by her to the Judicial Officer and recorded under section 164 Cr.P.C.. The statement recorded under section 164 Cr.P.C. is not a substantive piece of evidence and therefore, cannot be either used or utilized by a court of law, either in trial or in an appeal arising out of such trial to impeach the credit of the said witness without the witness being confronted with such evidence during his or her cross-examination. We further find that a bullet head was recovered from the place of occurrence and after the arrest of the appellants from their possession, two fire arms were recovered. The fire arms as well as the bullet head were sent to the Ballistic expert and his report was exhibited during the trial (marked as Ext.6). We further find that a bullet head was recovered from the place of occurrence and after the arrest of the appellants from their possession, two fire arms were recovered. The fire arms as well as the bullet head were sent to the Ballistic expert and his report was exhibited during the trial (marked as Ext.6). According to the opinion of the Ballistic Expert, the bullet head found from the spot was fired from the fire arms recovered from the appellants. It be noted during the cross-examination of the witnesses neither the seizure of the fire arms from the possession of the appellants nor the seizure of the bullet head from the spot was challenged. It is true that the appellants were acquitted of the charge under section 25/27 (1) (a) of the Arms Act. However, such acquittal was not on merit but due to a serious lapse and callousness on the part of the Investigating Officer of the case, who submitted the charge-sheet without obtaining necessary sanction from the appropriate authority. Having regard to the facts that acquittal was not on merit, the same has no bearing in favour of the appellants. We do not find any reason to disbelieve the prosecution case or the eye-witnesses to the occurrence. We are of the opinion that order of conviction as well as sentence imposed against the appellants is fully justified. In the result the appeal stands dismissed. Before parting with, we must note that PW/13, Santosh Kumar Sarkar, a Sub-Inspector of police posted at Kotshila police station, was the police officer submitted the charge-sheet in the case. Although the charge sheet was submitted for the offence punishable under the Arms Act before submission of charge-sheet he did not obtain sanction from the appropriate authority and the reasons are best known to him. It needs no mention that this is a very serious lapse on the part of the PW/13 and due to his fault the appellants remain unpunished for the offence committed by them. This conduct of the concerned Police Officer is highly deprecated and in our opinion a special departmental enquiry is called for, accordingly, this judgment at once be forwarded to the District Magistrate, Purulia and the Superintendent of Police, Purulia for taking appropriate steps against the PW/13 in accordance with the provisions of the Police Regulation of Bengal. This conduct of the concerned Police Officer is highly deprecated and in our opinion a special departmental enquiry is called for, accordingly, this judgment at once be forwarded to the District Magistrate, Purulia and the Superintendent of Police, Purulia for taking appropriate steps against the PW/13 in accordance with the provisions of the Police Regulation of Bengal. The learned Registrar General of this court is directed to communicate this order to the District Magistrate, Purulia and the Superintendent of Police, Purulia for compliance. The compliance report must be submitted within 8 weeks to this court. Urgent certified xerox copy of this order, if applied for, be given to the parties at the earliest.