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2016 DIGILAW 438 (CAL)

Tapas Karanga alias Handa v. State of West Bengal

2016-05-19

RAJIV SHARMA, SHIVAKANT PRASAD

body2016
JUDGMENT : SHIVAKANT PRASAD, J. This appeal is directed against the judgment and order dated 28th February, 2007 passed by the learned Additional District & Sessions Judge, Fast Track Court, Bishnupur, Bankura, in Sessions Case No. 13(10) 2005/Sessions Trial Case No. 3 (1) of 2006, arose out of Bishnupur P.S. Case No. 39/2005 convicting the appellant under Sections 324/326/307 and 302 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for two years for the offence punishable under Section 324 IPC, to suffer rigorous imprisonment for six years for the offence punishable under Section 326 IPC, to suffer rigorous imprisonment for ten years for the offence punishable under Section 307 IPC and to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/-(Five Thousand), in default to suffer further imprisonment for two years under Section 302 of the Indian Penal Code. The brief fact is that one Ajit Roy Chowdhury of Gopinathpur, Bankura lodged a written complaint on 17.7.2005 to the effect that his son Monojit Roy Chowdhury along with his friends Partha Dutta, Surajit Loho, Prasanta Das, Sujoy Dutta, Bappa Dutta, Sadhan Dutta and Pintu Ghosh on 16.7.2005 at about 10 A.M. at night proceeded from Bankura to Bishnupur to visit Rath festival after that at Kalitala of Gopalganj at about 1:00 P.M. Sadhan, Sujoy, Partha, Surajit, Prasanta and his son told that they are coming and asked Pintu to stand there. After passing of 15/20 minutes suddenly in grievous bleeding condition Partha Dutta, Monojit, Surajit and Prasantarushed there and with the help of Pintu were admitted at Bishnupur Hospital and for better treatment referred to Bankura Medical College and Hospital. But on the way to Bankura Hospital, Partha died. In such condition Partha was taken to Bankura Hospital and doctor declared him brought dead. On the basis of the written complaint Bishnupur Police P.S. Case No. 39/2005 dated 17.7.2005 under Sections 341/323/326/ 307/302/34 of the Indian Penal Code was started. S.I. Nityananda Chakraborty took investigation of the case and after completion of the investigation he submitted Charge-sheet against the accused person under Sections 341/326/307/302 of the Indian Penal Code on 18.10.2005. Accused person was arrested on 13.8.2005 and produced before the lower Court on 14.8.2005. Charges under Sections 341/326/307/302 of the IPC were framed against the accused person who pleaded not guilty and claimed for trial. Accused person was arrested on 13.8.2005 and produced before the lower Court on 14.8.2005. Charges under Sections 341/326/307/302 of the IPC were framed against the accused person who pleaded not guilty and claimed for trial. To prove the charges, the prosecution examined as many as twenty-nine witnesses and the defence examined none. After the prosecution closed its evidence, the accused person was examined under Section 313 of the Cr.P.C. but he declined to adduce any defence evidence. The defence case as revealed from the trend of the cross-examination of the witnesses is that of total innocence. Being aggrieved by the judgment impugned the appellant preferred this appeal inter alia, on the grounds that the order of conviction and sentence is bad, illegal and untenable in law. For the reason that the learned Judge without considering the materials on record and without taking into account the evidence elicited through cross-examination and without considering the fact that the accused has been falsely implicated into the case out of suspicion passed the said order of conviction and sentence which has caused a miscarriage of justice and that the FIR neither disclose the names of the assailant nor it contains the mode, manner and place of assault and the appellant was arrested merely on suspicion. It is submitted by Mr. Partha Sarathi Bhattacharyya, learned Arindam Sen that the injured witnesses, namely P.W.-4, P.W.-12 and P.W.-13 also did not disclose anything regarding the incident as to how they have been injured before the doctors and Bishnupur hospital or in Bankura hospital which casts doubts as regards the involvement of the appellant in the alleged offence because the deposition of doctors of Bishnupur hospital and Bankura hospital would go to show that all the injured were conscious and even the deceased Partha Dutta was also conscious when he was treated in the Bishnupur hospital. But none of them, made any whisper regarding the incident. Mr. Bhattacharyya further submitted the order of conviction and sentence has been passed solely relying upon the identification of the accused in the T.I. parade and the alleged recovery of the offending weapon which have not been proved by legal and cogent evidence for which the judgment is liable to be struck down. Mr. Bhattacharyya further submitted the order of conviction and sentence has been passed solely relying upon the identification of the accused in the T.I. parade and the alleged recovery of the offending weapon which have not been proved by legal and cogent evidence for which the judgment is liable to be struck down. Adverting to the evidence of P.W.-4 injured witness it is contended that evidence shows that he could not identify the accused as it was dark night inasmuch as the accused was shown by the police while he was in lock up before T.I. parade only to implicate the accused falsely as FIR is against unknown persons inviting suspicion against the friends of the injured and not against the accused. The learned Judge erred in not considering the material fact that the accused was all along kept at P.S. and seizure of knife is only a paper work to fill up the lacuna. In this context our attention in instead of the evidence of P.W.-22 a seizure list witness in respect of the knife who has stated that except putting his signature on the paper at the request of the police, he knew nothing about and the evidence of P.W.-28 another seizure list witness is that he was standing near the police vehicle and the I.O. and another person went towards colony and after 10/15 minutes Nityananda Babu returned and he signed on a seizure list and that there was no labelling or packing of seized article there. In view of the evidence of P.W.-22 and P.W.-28 and thus, it is submitted that the learned Judge should not have placed his reliance in the alleged recovery of knife in convicting the accused. It is also argued that the evidence of P.W.-29, the I.O. is that in the seizure list it has not been noted seized knife has been sealed, on the label of the knife there is no signature of the accused or witnesses. That he did not send the seized knife before the Court, it was sent by Malkhana office of the P.S. which completely demolished the prosecution version as regards recovery of knife and as such the order passed by the learned Judge is liable to be quashed. That he did not send the seized knife before the Court, it was sent by Malkhana office of the P.S. which completely demolished the prosecution version as regards recovery of knife and as such the order passed by the learned Judge is liable to be quashed. The evidence of the doctors, namely, P.W.-18, P.W.-21, P.W.-24 and P.W.-26 who treated the injured at the hospital also casts doubts as regards the prosecution version as none of the injured though they were conscious did disclose anything regarding time place and manner of assault upon them. It is true that the FIR does not disclose the name of the assailant. But it merely for none disclosure of the name of the assailant does not create any suspicion in the prosecution case. In the case in hand incident took place when the deceased had caught hold of a pick pocketer on the day of Rath festival on ultarath near ‘kali’ temple and it is not excepted from the maker of the FIR and even the injured have known the name of the assailant. It is settled principle of law that FIR is not a substantive piece of evidence. It is used for a limited purpose of corroboration or for contradiction to its maker. In this case incident took place on the night of 16/17. 7.2005 at 01.00 hours and the FIR was lodged at 17.25 hours of 17.7.2005. So, there was no inordinate delay in the lodgement of the FIR because the inmates of the family and the maker of the FIR were undoubtedly involved in the treatment of the injured persons. P.W.-4 Prasanta Das, Surojit Loha P.W.-12 and Monojit P.W.-13 were injured by the assailant on the date of occurrence. It is depicted from their evidence that P.W.-4 had suffered stab injury on his neck and chin as depicted from medical document Ext.-7/2 and Ext.-12. P.W.-13 had stab injury on his left side of the chest which is depicted from the injury reports Ext.-6/2 and Ext.-15. P.W.-12 had suffered multiple injuries on back and buttock and left chest as depicted from the medical reports Ext.-13 and Ext.-5/2. Mr. Bhattacharyya has submitted that the evidence of the doctors namely P.W.-18 P.W.-21, P.W.-24 and P.W.- 26 who treated the injured persons in the hospital have stated that the injured persons were conscious but they did not disclose anything regarding manner of assault on them. Mr. Bhattacharyya has submitted that the evidence of the doctors namely P.W.-18 P.W.-21, P.W.-24 and P.W.- 26 who treated the injured persons in the hospital have stated that the injured persons were conscious but they did not disclose anything regarding manner of assault on them. We are unable to accept such submission because it is not possible to have narrated the incident of assault and the manner taking place by the injured. A brief history of injury suffered by the injured witnesses is reflected from the medical evidence to show that the injured persons had suffered stab injuries on their person inflicted by the assailant. Thus, the name of the assailant was not in the knowledge of the injured persons. Mr. Bhattacharyya has further invited our attention to proceeding to T.I. Parade Ext.-11 held by P.W.-25, Mr. Anandasankar Mukhopadhyay Judicial Magistrate, Bishnupur on 24.8.2005 which shows that the injured witnesses namely P.W.-4, P.W.-12 and 13 had identified the assailant as the person who inflicted injury on them and to the note endorsed on the T.I. Parade proceeding to this effect that the suspect had stated to him that the said witnesses at the T.I. Parade along with their father were presented before him by the Second Officer of Bishnupur P.S. at the P.S. when he was in police custody and identified him to the witnesses and their respective father. It is clenched position of law that identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroboration of the statement in court. The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. Hence, T.I. Parade proceeding is not a substantive piece of evidence and identification of suspect given by the witnesses at the T.I. Proceeding must be proved by evidence before the Trial Court. It is true that P.W.-4 has not identified the assailant during trial whom he had identified before the Magistrate at the time T.I. Parade and for that a case of perjury was started against him by the Trial Judge. However, we find from the evidence of other two injured witnesses namely, P.W.12 & P.W.-13 that they have identified the accused assailant during trial. Thus, the identity of the accused assailant at the T.I. Parade finds corroboration by them and the evidence is conclusive in nature as to the identity of the accused who committed the crime. The fact that the it was the accused appellant and nobody else can also be inferred from the disclosure statement of the accused made on 27.11.2006 vide Ext.-21, in pursuance thereof there was recovery of knife seized as MAT Ext.1 under the seizure list while he was in police custody. P.W.-1 is the FIR maker who having heard about the incident and went hospital and saw injured and the dead body of Partha Dutta and lodged the complaint Ext.-I on the basis of which formal FIR was drawn and investigation taken out. P.W.-2 is the father of the deceased who after having heard about the incident and the murder of his son near temple of goddess kali had been to hospital where he saw the dead body of his son and other three injured persons. P.W.-3 had removed injured Monojit to Bishnupur hospital from his house but Monojit could not tell him about identity of the assailant. P.W.-3 had removed injured Monojit to Bishnupur hospital from his house but Monojit could not tell him about identity of the assailant. This piece of evidence to none disclosure of the assailant’s name in quite natural because it may not be possible for the injured to disclose the name of assailant who was not known to him before the date of occurrence. P.W.-4 is the injured. P.W.-5 father of injured Monoj Roy Chowdhury, P.W.-6 mother of injured Surojit Loha, P.W.-7 mother of Prasanta Das, injured and P.W.-8 mother of Partha Dutta deceased have all stated that after getting the news of the incident they had been to hospital and saw injured persons and Partha Dutta lying dead. P.W.-9 and P.W.-10 while on the way to Bankura by a bus came to know about the incident and visited the hospital and he learnt all about from the injured Monoj, Surojit and Prasanta. P.W.-11 learnt in the morning about the incident. P.W.-14 had seen the deceased and injured running by his side with bleeding injury and the injured Partha and Surojit were removed to Bishnupur hospital by cousin of injured Monojit. P.W.-15 uncle of the deceased Partha Dutta, P.W.-16 maternal uncle of the deceased are the witnesses to the inquest report Ext.-2 held by P.W.-19 ASI of police. Evidence of P.W.-17 is however of no help to the prosecution as he was not in the knowledge of the incident. After the inquest the dead body of Partha was taken to P.M. doctor under dead body challan Ext.-3 by Constable P.W.-20 who is also a witness to seizure of wearing apparels of the deceased under Ext.-4/1 on the seizure list. P.W.-21 sent dead body information to Officer-in-charge of police station which was written by Ward Master Ext.-23 vide Ext.-8 and Ext.-10. P.W.-24 doctor of Bankura hospital has examined injured Surojit who was admitted under him and has stated that his condition was not bad. P.W.-26 doctor of Bishnupur has proved the injury report Ext.-12 in respect of Partha Dutta which shows that he was attended by doctor at Bishnupur hospital. P.W.-27 is the Autopsy Surgeon who proved P.M. report Ext.-18 which proves that Partha Dutta died a homicidal death, ante mortem in nature due to the injuries inflicted on the vital part of the body being the neck by a weapon like knife. P.W.-27 is the Autopsy Surgeon who proved P.M. report Ext.-18 which proves that Partha Dutta died a homicidal death, ante mortem in nature due to the injuries inflicted on the vital part of the body being the neck by a weapon like knife. P.W.-28 a Constable was present at the time of recovery of weapon of crime i.e. knife MAT. Ext.-I under a seizure list Ext.-9/2. I.O. P.W.-29 has thoroughly taken up the investigation. Having appraised the evidence on record we find that prosecution case has been well corroborated by injured witnesses supported by medical evidence. Question of identify is also not in doubt. It is true that T.I. Parade was held on 24.8.2005 after the date of occurrence on 16/17.7.2005. But such delay in holding of T.I. Parade is not fatal to the prosecution case. The Hon’ble Supreme Court in case of Dara Singh Vs. State of Haryana reported in AIR 2001 SC 1188 held that the purpose of test identification is to have corroboration to the evidence of the eye-witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impression of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion- what is present day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution. In this case we have observed that T.I. parade held on 24.8.2005 the accused was only arrested on 27.11.2006 in which the injured witnesses had attended and identified the accused obviously, after having recovered from injuries. Therefore, we are unable to accept the contention of Mr. Bhattacharyya that order of conviction and sentence was solely relying upon the identification of accused in T.I. Parade and the recovery of knife because two of the injured witnesses as we have discussed above have identified the accused before the Trial Court in their evidence. Therefore, order of conviction and sentence cannot be interfere with. In the context of the discussion above, we do not find any ground to interfere with the impugned judgment. Therefore, order of conviction and sentence cannot be interfere with. In the context of the discussion above, we do not find any ground to interfere with the impugned judgment. In the result, appeals fails and is dismissed. Let the Lower Court Record together with a copy of this Judgement be sent down to the learned Trial Court forthwith for necessary action. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree.