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2015 DIGILAW 68 (CAL)

Purnendu Samanta v. State of West Bengal

2015-01-29

NISHITA MHATRE, SAMAPTI CHATTERJEE

body2015
JUDGMENT NISHITA MHATRE, J. 1. The appeal is directed against the decision of the Additional Sessions Judge, 2nd Fast Track Court, Hooghly in Sessions Trial No. 2 of 2006 dated 18th April, 2008. The appellant has been convicted for having committed an offence punishable under Section 302 of the IPC and has been sentenced to suffer imprisonment for life with a fine of Rs.10,000/- (Rupees ten thousand only); in default of payment of the fine the appellant has been directed to suffer two more years of rigorous imprisonment. 2. An FIR was registered on the basis of the complaint of Purnendu Samanta, the appellant herein, who was employed as a Constable with the West Bengal Police. His statement was recorded under Section 161 of the Cr. P.C. and was treated as the complaint in this case. He has stated that on 4th September, 2003 at about 0.30 a.m. he was engaged in the routine checking of two wheelers. He was on duty together with a local night guard and a home guard. While two of them were checking the two wheelers near Crown Gate on G.T. Road at Uttarpara, the appellant waited at Ballykhal at G.T. Road with his police motor cycle, to nab any motor cyclist who resisted or suspiciously tried to escape the first picket. He has further stated that about 0.45 a.m. the local night guard Swapan Sengupta informed him on his mobile phone that a yellow coloured Hero Honda Ambition motor cycle had escaped at a very high speed towards Ballykhal. The complainant then stood blocking G.T. Road in front of Ballykhal and he saw the motor cycle with two riders approaching. He could not see the number of the vehicle because it was dark. He shouted to the motor cyclist to stop and revealed his own identity with the torch light. According to the complainant, the motor cycle slowed down in front of him and somebody shot him in the leg. He slumped to the ground and the motor cyclists tried to escape. He fired one round from his service revolver to save his life and to resist the antisocial elements. Then he dragged himself to the footbridge by the side of the road and soon lost consciousness. When he regained his senses, he found himself in the police station and was admitted to hospital. His statement was recorded in the Uttarpara Hospital. He fired one round from his service revolver to save his life and to resist the antisocial elements. Then he dragged himself to the footbridge by the side of the road and soon lost consciousness. When he regained his senses, he found himself in the police station and was admitted to hospital. His statement was recorded in the Uttarpara Hospital. On being interrogated by the police, a case was registered under Sections 341, 353, 326 and 307 of the IPC and Sections 25 and 27 of the Arms Act. This was registered as an FIR being No.127 of 2003. 3. It appears that instead of proceeding with this case, the police registered another FIR being Uttarpara Police Station case No.128 of 2003 dated 4th September, 2003 under Section 304 of the IPC. This FIR lost its significance for the police later at some point of time. The appellant was then arrested for having shot and killed the motor cycle rider. 4. On the basis of his own FIR the appellant was arrested for having murdered Sanjay Chakraborty, the motor cycle rider. After the appellant was discharged from the hospital on being treated for the bullet injury that he had received on his leg, he was tried for the aforesaid charge. He was found guilty and sentenced as aforesaid by the Trial Court. 5. The prosecution has examined 31 witnesses in order to ensure that the appellant was convicted. PW 1 is the person who was accompanying the appellant on duty and was engaged as a member of Citizen Rapid Volunteers Force. He has narrated his version of the incident. It corroborates the contents of the complaint. This witness has reiterated that he was posted along with another person at G.T. Road and had tried to stop the bike rider, who was riding a yellow bike and was approaching from Konnagar in a high speed. He has mentioned that they were one or two men on the bike. He has also stated that the bike rider did not stop on being asked by those on patrol and instead, he sped away at a high speed. This witness has stated that a little later another bike approached them from the same direction and stopped when signalled by the police. They were asked whether they knew the bike rider of the earlier bike which had passed and they denied the same. This witness has stated that a little later another bike approached them from the same direction and stopped when signalled by the police. They were asked whether they knew the bike rider of the earlier bike which had passed and they denied the same. They were requested to hand over their bike to the police so as to reach the next patrol where the appellant was on duty. On being refused PW 1and his colleague proceeded on a scooter to Ballykhal where the appellant was on duty. They found the yellow bike and the rider lying on the road. Swapan Sengupta who was with PW 1 informed the duty officer of the police station about the matter. PW 1 has stated that they could not find the appellant. They then removed the bike rider to the hospital in a rickshaw. Despite searching for the appellant, according to this witness, they could not find him at Ballykhal. 6. PW 2 was the other person on duty with PW 1. He worked as a Traffic Warden. He has corroborated the testimony of PW 1. 7. PW 3 is a driver of a police jeep. He has stated that he drove the police vehicle to Ballykhal Bridge and took the injured person to the Uttarpara General Hospital. 8. PW 4 is the brother of the deceased. The witness claims that he received a telephonic message that his brother was in a critical condition and was lying in the Uttarpara Police Station in a senseless condition. PW 4 and another brother of the deceased reached the police station. According to this witness, the SDPO told him that the deceased was an anti-social element, to which he objected as there was no record to that effect. He was informed that his brother and the pillion rider were proceeding towards Ballykhal and that his brother had shot a police personnel who returned the fire. The SDPO then informed him that his brother had expired. He has, in his cross-examination, admitted that his brother Sanjay at times purchased aluminium scrap at auctions and that it was a profitable business. 9. PW 5 was examined by the prosecution to show that Sanjay was the only one on the bike and that the earlier witnesses who had mentioned that there were two bike riders or were ambivalent about the number of persons on the bike were not correct. 9. PW 5 was examined by the prosecution to show that Sanjay was the only one on the bike and that the earlier witnesses who had mentioned that there were two bike riders or were ambivalent about the number of persons on the bike were not correct. This witness was a singer in a restaurant. She has spoken of her friendship with the deceased and that the deceased had offered to give her a ride on his bike all the way up to Srirampur from Kolkata. According to her, she and Sanjay were on one bike while three others were on another bike. She has stated that after they dropped her off at her house, Sanjay rode alone on his bike whereas the other two persons rode on another bike. She has not mentioned what happened to the third person who rode on the second bike. 10. PW 7 is the police photographer. 11. PW 8 is the Ward Master of the Uttarpara State General Hospital. He has spoken of one Dr. Soma Ghosh being posted in the same hospital on 4th September, 2003, i.e., the date on which the incident occurred. According to him, after Dr. Soma Ghosh called him at 1 a.m. on that day, he found the dead body lying on a trolley. The body was not identified by the person who brought it to the hospital. According to this witness, after a while two police officers and an injured policeman came to the hospital. The injured policeman was admitted and he mentioned that he had sustained a gunshot injury on his left leg. The injured policeman was identified by the witness in Court as the appellant. According to him, about 15 to 20 minutes after the admission of the appellant into the hospital, his uniform, belt, ammunition and revolver was seized. He witnessed the seizure and has signed the seizure lists. The trousers worn by the appellant were also seized and there was a bullet entry mark on the trousers. In his cross-examination this witness has stated that Dr. Soma Ghosh asked certain questions to the appellant, who disclosed that there was an exchange of fire at Ballykhal. She did not record her conversation with the appellant in writing. 12. PW 15 was the person riding the second bike. He was well-acquainted with the deceased. In his cross-examination this witness has stated that Dr. Soma Ghosh asked certain questions to the appellant, who disclosed that there was an exchange of fire at Ballykhal. She did not record her conversation with the appellant in writing. 12. PW 15 was the person riding the second bike. He was well-acquainted with the deceased. He has spoken about the riding from Kolkata to Srirampur with PW 5 and their journey back to Uttarpara. In fact, his statement more or less corroborates what has been stated in the complaint except to the extent that he learnt that Sanjay died in a crossfire with the police when he reached the Uttarpara Police Station. 13. PWs 19, 20 and 25 are witnesses on whom the prosecution has relied greatly to incriminate the appellant. PW 19 Dr. Soma Ghosh was the Medical Officer in the Emergency Department at the Uttarpara State General Hospital on the day of the incident. She has spoken about an unknown male person being brought to the Emergency Department. She has further stated that she was asked for her opinion by the investigating officer in Uttarpara Police Station case No.127 dated 4th September, 2003 and also in Uttarpara Police Station case No. 128 dated 4th September, 2003. She has stated that she submitted one written opinion which is marked as Exbt.15 in the present case. In her opinion she has opined that possibility of the appellant having a self-inflicted wound could not be ruled out. 14. PW 25 was posted as a Professor and Head of the Department, Forensic & State Medicine, Medical College, Kolkata on the day of the incident. He was asked for his opinion regarding the cause and manner in which the gunshot injury was sustained by the appellant as well as the injury suffered by the deceased. He has submitted his opinion which is marked as Exbt.17 without examining the deceased. He examined the appellant after his injury had healed and submitted an opinion that the appellant had a self-inflicted gunshot wound. 15. By relying on the evidence of PWs 19 and 25, the prosecution has tried to build its case that the appellant had wantonly shot at the deceased and then inflicted the bullet wound on his own leg. 16. PW 20 is the doctor who performed the post mortem examination. The injuries sustained by the victim are as follows: 1. 15. By relying on the evidence of PWs 19 and 25, the prosecution has tried to build its case that the appellant had wantonly shot at the deceased and then inflicted the bullet wound on his own leg. 16. PW 20 is the doctor who performed the post mortem examination. The injuries sustained by the victim are as follows: 1. One eliptical penetrating wound of entry 1/4" x 1/6” of size over bostero-lateral aspect of upper 3rd of left arm about 4” below acromioclavicular joint traverring through muscle and exiting through medial aspect of same arm. 2. Exit wound about 1/4" x 1/6” with sprouting self-tissue with haemorrhage along the surrounding tissue. 3. Another would of entry over lateral aspect of chest through 3rd entercostal space near mid axillary line (left) about 1/2" diameter traverring through lung (obligatory), both vertricles and right lower lobe of lung with bilateral haemothorax and haemopericardian and one bullet found in right thoraxic cavity. 17. The post mortem examination was performed by PW 20 along with two other doctors posted in the same hospital. The cause of death was assigned to shock and haemorrhage as a result of the injuries sustained by the deceased which were ante mortem in nature. He has opined that the injury sustained by the deceased was possible if a person who was riding on a motor cycle was fired at from the side. He has stated that the injury could not have been sustained if the appellant had received the gunshot either from the back or from the front. From the injuries mentioned above, it is apparent that the appellant had shot the deceased on his left arm from the side. The bullet had exited and entered into the victim’s chest through the intercostal space. It then traversed to the lung. The bullet was handed over to the Constable in a sealed container to be sent for ballistic examination. 18. PW 26 is the ballistic expert. He has submitted his report which is exhibited as Exbt.18 before the Trial Court. The witness was also sent the trousers worn by the appellant while on duty. According to him, there were two external holes in the upper region of the left trouser leg and were caused by the same projectile. He stated that there was no attempt to remove or obliterate the traces of firing from the revolver. 19. The witness was also sent the trousers worn by the appellant while on duty. According to him, there were two external holes in the upper region of the left trouser leg and were caused by the same projectile. He stated that there was no attempt to remove or obliterate the traces of firing from the revolver. 19. PW 31 is the investigating officer in the present case. He has conceded that he started both Uttarpara Police Station case No. 128 dated 4th September, 2003 under Section 304 of the IPC and case No. 127 of 2003 dated 4th September, 2003 under Sections 341, 353, 326 and 307 of the IPC and Sections 25 and 27 of the Arms Act. He has also stated that he started the investigation on 4th September, 2003. The inquest was carried out by PW 11 in this case. He claims to have recorded the statement of other witness on 5th September, 2003 under Section 161 of the Cr. P.C. He has then spoken about seeking the opinion of Dr. Soma Ghosh – PW 19 and Dr. A. K. Gupta – PW 25. After eliciting their opinions he arrested the appellant on 22nd August, 2003. When queried about why there were two cases being Uttarpara Police Station Nos.127 and 128 of 2003, PW 31 has replied thus: “During investigation of this case I have smelt that the earlier case No.127 of 2003 is very much interlinked with this case. At the time of filing charge-sheet finally against the accused I did not find any eye witness against him. I have only found circumstantial evidence as well as scientific evidence as well as the shocking evidence.” The witness has then stated that he submitted the charge-sheet on completing the investigation of case No.128 of 2003. The articles seized in case No.127 of 2003 were reseized by him and sent to the Forensic Science Laboratory. He has then stated that he duly investigated the Uttarpara P.S. case No.127 of 2003 dated 4th September, 2003 and after completion of the enquiry, he prayed that the appellant who was the complainant in the case should be prosecuted. He has denied the suggestion put to him by the defence that the appellant had been made a scapegoat in order to shield the police department from ignominy after the deceased was shot. He has denied the suggestion put to him by the defence that the appellant had been made a scapegoat in order to shield the police department from ignominy after the deceased was shot. He has, however, conceded that two wheelers were regularly checked by the patrol authority on the road at Hooghly. The witness has conceded that the relevant column in Exbt.25 which is the ammunition register was interpolated. He could not explain as to why there were no entries in the register either prior to 3rd September or after 3rd September, 2003. 20. Considering the evidence in the present case there is sufficient material which incriminates the appellant. There is no dispute that he was on duty on the relevant date and time on the G.T. Road. It has been proven sufficiently through the prosecution witnesses that the appellant was a member of a police patrol engaged to check unruly bike riders. There is also no dispute that the appellant shot the deceased with his service revolver. The injury proved to be fatal. The rest of police patrol including PWs 1 and 2 had removed the victim to the hospital and on arriving there he had been declared dead. When the body of the deceased was taken from the place of occurrence, the other police personnel were not able to find the present appellant. The appellant was then taken to the hospital by PWs 11 and other police personnel. He was treated for the gunshot wound on his leg. Thus, the evidence on record establishes that the appellant fired a shot while on duty at the deceased. The post mortem report clearly mentions that the victim’s death was a culpable homicide. 21. The appellant fired a shot while on duty because the deceased did not stop his motorcycle when directed to do so by the appellant. In our opinion therefore the appellant cannot be convicted under Section 302 of the IPC. The crime committed by the appellant is a culpable homicide not amounting to murder as it falls within Exception 3 of Section 300 of the IPC. There can be no doubt that the appellant was a public servant and was acting for the advancement of law and order. The appellant had no intention to kill the accused or any ill-will against him. There can be no doubt that the appellant was a public servant and was acting for the advancement of law and order. The appellant had no intention to kill the accused or any ill-will against him. He fired the shot in good faith believing that it was necessary for the due discharge of his duty as a public servant when the deceased did not stop the motor cycle when directed by the appellant. The evidence on record indicates that the appellant did direct the deceased to stop his motorcycle. It is the case of the appellant that at that point of time the deceased shot him in the leg. Even if one does not accept the case of the appellant that he was shot in the leg by the deceased, it is apparent that the appellant used force and shot the appellant causing his death in the due discharge of his duty as a public servant. Therefore, the appellant cannot be held guilty of having committed a murder. In our opinion he has committed a culpable homicide not amounting to murder. Knowing that his act of firing a shot would be likely to cause death, the appellant had no intention to cause death. 22. In these circumstances, the decision of the Trial Court is set aside. The conviction of the appellant under Section 302 of the IPC is set aside. Instead, he is convicted under Section 304 Part II. The appellant has been in custody from 18th April, 2008, i.e., for 6 years and 10 months. We are of the opinion that the sentence undergone by the appellant is commensurate with the crime committed by him. Therefore, the appellant shall be set free if not required to be detained in any other case. 23. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.