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2017 DIGILAW 354 (CAL)

Sk. Gopal @ Mehrul v. State of West Bengal

2017-04-03

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2017
JUDGMENT : Debasish Kar Gupta, J. 1. These appeal are directed against a judgement and order of conviction dated November 27, 2014 and sentence dated November 28, 2014 passed by the learned Additional District & Sessions Judge, Bolpur, Birbhum in Sessions Trial No.12 (June)/2013 arising out of Sessions Case No.114 of 2013 (22 of 2013) convicting the appellant for commission of offence punishable under Sections 341/302/34 of Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentencing him to suffer imprisonment for one month for commission of offence punishable under Section 341 of the I.P.C. and to suffer imprisonment for the rest of his life or 30 years, whichever is earlier and to pay a fine of Rs.5000/- for commission of offence punishable under Section 302 of the I.P.C., the sentences being directed to run concurrently. 2. The backdrop of these appeals in a nutshell is as under :- On November 17, 2012 at about 18.30 hours one Chittaranjan Mondal (the deceased person) was on his way to Amnahar along with Sri Rajib Ghosh (PW 2) for making arrangement for labour to reap paddy. When they reached near Kashiyara Primary School at Sainthia Dangal the appellant along with Adai Sk, Sentu Kazi, Salam Sk, Rentu Sk, Rasi Sk, Najal Sk, Raijul Sk, Sk Janab Ali, Kasem Sk, Sanowar Sk, Babu Sk, Khudu Sk, Laltu Kazi, Nurai Sk, Duty Sk, Ansar Mir @ Hanu, Mirtajuddin Ahmed @ Moktar, Nur Islam @ Sonai, Sk Ismail, Nur Alam Sk @ Ranu, Hasmat Sk @ Meno, Rupsanatan Chandra, Sudarshan Hazra, Sk Zamir @ Omar Ali, Golam Rasul @ Bhadu, Pranab Patra, Nur Adil Dafadar, Nidu Das and their associates of Bipratikuri chased them. PW 2 somehow managed to escape running towards Amnahar. The appellant and his associates caught hold of the aforesaid Chittaranjan Mondal (the deceased) and started beating him. The PW 2 on his return from Amnahar with other people at the place of occurrence found Chittaranjan Mondal (the deceased) in an injured condition. His two legs and right hand were broken with injury on head which appeared to be caused by assaulting him with blunt substance. There were also sign of bullet injuries on two legs of Chittaranjan Mondal (the deceased). On query he disclosed the names of the appellants Kashem Sk, Adai Sk, Sentu Sk and others who had assaulted him causing the aforesaid injuries. There were also sign of bullet injuries on two legs of Chittaranjan Mondal (the deceased). On query he disclosed the names of the appellants Kashem Sk, Adai Sk, Sentu Sk and others who had assaulted him causing the aforesaid injuries. Thereafter, the deceased lost his sense. The PW 2 took the deceased to Bolpur Sub Divisional Hospital with the help of other persons at about 20.00 hours on the above date. He was referred to Burdwan Medical College & Hospital at about 21.00 hours on the same day. On November 18, 2012 at about 00.40 hours the deceased was further referred to Kolkata due to his critical condition. On the way to Kolkata, at about 02.00 hours the condition of the deceased deteriorated badly near Singur. Consequent thereupon they came back to Burdwan Medical College & Hospital at about 03.30 hours and the doctor declared the above Chittaranjan Mondal dead. On November 18, 2012 at 21.15 hours a written complaint was submitted to the Labpur police station, Birbhum by Sri Dwajadhari Mondal (PW1), father of the deceased. On the basis of the above complaint at 21.15 hours, after making an entry in the general diary bearing no.719, a formal FIR bearing Labpur P.S. Case No.178/12 dated November 18, 2012 was registered in the Labpur police station, Birbhum. 3. Inquest examination on the dead body of the deceased was conducted by PW 18 on November 18, 2012 at 10.45 hours at the morgue of Burdwan Medical College & Hospital with reference to Burdwan P.S. U.D. Case No.1435/12 dated November 18, 2012. According to the preliminary investigation conducted at the time of inquest examination the deceased person was on the way to Amnahar Adibasi Para for arrangement of labour for reaping paddy. Before entering the village near Kashiyara beside Sau Pukur the miscreants saw the deceased person and assaulted him on his head and chest and shoot on his both the legs. Sri Manoranjan Mondal, Balaram Mondal and Arup Mondal, who were two elder brothers and brother-in-law respectively, were the witnesses to the aforesaid inquest report. After preparing the inquest report the dead body of the deceased was sent for post mortem examination through Golam Mostafa, a constable attached to Burdwan police station. Sri Manoranjan Mondal, Balaram Mondal and Arup Mondal, who were two elder brothers and brother-in-law respectively, were the witnesses to the aforesaid inquest report. After preparing the inquest report the dead body of the deceased was sent for post mortem examination through Golam Mostafa, a constable attached to Burdwan police station. The post mortem examination on the dead body of the deceased was conducted on November 18, 2012 at 14.00 hours with reference to Burdwan P.S. U.D. Case No.1435/12 dated November 18, 2012. According to the opinion of the doctor (PW 20), the cause of death was gunshot injuries which were ante mortem and homicidal in nature. 4. PW 19 was entrusted with the investigation of the above case. Accused Sk. Kamrul @ Salam Sk. and Sk. Salam @ Kamrul were arrested on November 30, 2012 and December 6, 2012 respectively. On December 19, 2012 the appellant was arrested from Chennai by a team of police personnel under the leadership of Brikadar Sanyal of Mayureswar Police Station. He was brought to Labpur, Birbhum on December 22, 2012. 5. Charge-sheet bearing no.35/2013 dated February 19, 2013 was filed in connection with the aforesaid case against sixteen accused persons alleging commission of offence under Sections 341/302/34 of the I.P.C. and showing fourteen accused persons as absconders. Charge was framed under Sections 341/302/34 of the I.P.C. against Salam Sk @ Kamrul @ Kamal and the appellant Sk. Gopal @ Mehrul on June 27, 2013. Pleading innocence the accused persons claimed to be tried. 6. After considering the oral evidences of 18 prosecution witnesses as also other documentary witnesses, the impugned judgment and order of conviction was passed. 7. Consequent upon arrest of accused Laltu Kazi charge was framed against him on September 2, 2014 alleging commission of offence punishable under Sections 341/302/34 of the I.P.C. Pleading innocence the accused person claimed to be tried. 8. By a separate judgment and order of acquittal dated February 4, 2015 accused Laltu Kazi was found not guilty to the charges levelled against him. 9. It is submitted by Mr. 8. By a separate judgment and order of acquittal dated February 4, 2015 accused Laltu Kazi was found not guilty to the charges levelled against him. 9. It is submitted by Mr. Milon Mukherjee, learned Senior Advocate, appearing on behalf of the appellants that the impugned judgment, order of conviction and the sentence cannot be sustained in law on the following grounds:- (i) Though, according to the prosecution case, the commission of offence took place on November 17, 2012 at 18.30 hours and the deceased was declared dead by the doctor of Burdwan Medical College & Hospital on November 18, 2012 at about 03.30 hours, the FIR was registered on November 18, 2012 at 21.15 hours which was sent to the Court of learned Additional Chief Judicial Magistrate, Bolpur, Birbhum on November 21, 2012. It is further pointed out by him that on November 17, 2012 he was brought to the Bolpur Sub Divisional Hospital and subsequently brought to the Burdwan Medical College & Hospital on the following day in a police vehicle. So, there was unexplained inordinate delay in lodging the FIR as also in forwarding the same to the Court which cast reasonable doubt on the truthfulness of the prosecution case. (ii) The declaration of the name of the appellant or his associates by the deceased was not free from doubt. According to the written complaint, the deceased disclosed the names of the accused persons including the name of the appellant at the place of occurrence when PW 2 came back at the place of occurrence at Sainthia Dangal at Amnahar with police and other persons. The source of above information to the complainant was PW 2. According to the evidence of PW 2, the deceased disclosed the names of the accused persons including appellant to him at the Bolpur hospital. Though the I.O. collected the Bed Head Ticket from the Bolpur Sub Divisional Hospital, it was not produced before the Court. According to the medical papers of Burdwan Medical College & Hospital the deceased was found senseless. So, when the deceased had regained his sense at Bolpur hospital remained unanswered due to withholding of papers of Bolpur Sub Divisional Hospital before the Court. (iii) On the date of incident there was darkness at the place of occurrence at the time of commission of offence. So, when the deceased had regained his sense at Bolpur hospital remained unanswered due to withholding of papers of Bolpur Sub Divisional Hospital before the Court. (iii) On the date of incident there was darkness at the place of occurrence at the time of commission of offence. According to the evidence of PW 2, the appellant Sk Gopal identified the deceased in the torch light of his associates namely, Adai Sk. focusing light on the face of the deceased. There was no other source of light at the place of occurrence at that time. Therefore, identification of the accused persons as claimed in the prosecution case was doubtful. (iv) According to the evidence of PW 2, he disclosed to the I.O. that he had met police officer at Amnahar village and had disclosed everything to him. He was present at the time of inquest examination of the dead body of the deceased at the morgue of Burdwan Medical College & Hospital. The names of the appellant were not disclosed in the inquest report. It was recorded that the preliminary investigation revealed that the deceased was murdered by miscreants. Further, two elder brothers and the brother-in-law of the deceased were the inquest report witnesses but none of them was produced before the Court as prosecution witness. It was withholding of best witness before the learned court bellow. (v) Though according to the prosecution case, accused Laltu Kazi stood on the same footing with the appellant he was acquitted from the charge levelled against him. 10. Reliance is place by Mr. Mukherjee on the decisions of Tomaso Bruno & Anr. vs. State of Uttar Pradesh, reported in (2015) 7 SCC 178 and Thanedar Singh vs. State of Madhya Pradesh, reported in (2002) 1 SCC 487 in support of his above submissions. 11. At the very outset it is submitted by Mr. Ranabir Roy Chowdhury, learned State Advocate, that the prosecution case was based on direct evidence of the eyewitness PW 2. The above evidence was corroborating with those of PW 3, PW 4 and PW 19. 12. It is further submitted by him that the cause of delay in lodging FIR was evident from the evidence of PW 1 that he, being the father of the deceased, was shocked as also pre-occupied with the last rites of his son which was the cause of delay in lodging the FIR. 12. It is further submitted by him that the cause of delay in lodging FIR was evident from the evidence of PW 1 that he, being the father of the deceased, was shocked as also pre-occupied with the last rites of his son which was the cause of delay in lodging the FIR. According to him, the names of the accused persons including the appellant appeared in the FIR. Inquest and post mortem examinations were conducted with reference to Burdwan P.S. U.D. Case No.1435/12 on the date of occurrence and on the following date respectively. Therefore, the delay in forwarding the FIR to the Court was not fatal or would not dislodge the prosecution case. 13. According to Mr. Roy Chowdhury, the names of some of the accused persons including the appellant were disclosed by the deceased person to PW 2 at the place of occurrence. The learned Single Judge found the above witness trustworthy. Therefore, there was no doubt with such disclosure of the names of the accused persons including the appellant. 14. According to Mr. Roy Chowdhury, the accused persons including the appellant were known to the deceased person as also PW 2. That apart, from the light of the torch light when the deceased was identified, there was no difficulty in identifying the accused persons including the appellant. 15. With the regard to the contention of the appellant that the names of the accused persons were not disclosed in the inquest report, it is submitted by Mr. Roy Chowdhury that two elder brothers and the brother -in-law of the deceased were the signatories of the inquest report as witnesses. Neither they were made prosecution witnesses nor did it appear from the evidence available on record that the names of the accused persons including the appellant were known to them. 16. Regarding the next contention of the appellant it is submitted by him that according to the evidence of PW 2, the deceased disclosed the names of the some of the accused persons including the appellant and Salam Sk. But the name of Laltu Kazi was not available from the evidence of PW 2. According to the evidence of PW 2, the deceased disclosed him about the previous attempt which had been made by the appellant to kill him. There was no evidence of political rivalry in between the deceased and Laltu Kazi. But the name of Laltu Kazi was not available from the evidence of PW 2. According to the evidence of PW 2, the deceased disclosed him about the previous attempt which had been made by the appellant to kill him. There was no evidence of political rivalry in between the deceased and Laltu Kazi. Due to aforesaid reasons the learned Single Judge passed the order of acquittal against Laltu Kazi. 17. Reliance is placed by Mr. Roy Chowdhury on the decisions of Rabindra Mahto & Anr. vs. State of Jharkhand, reported in (2006) 10 SCC 432 , Anjan Dasgupta vs. State of West Bengal, reported in 2016 (11) JT 294, Mahesh Janardhan Gonnade vs. State of Maharashtra, reported in 2008 (13) SCC 271 and Naim & Anr. vs. State of Uttarakhand, reported in 2015 (1) SCC 397 in support of his above submissions. A. Unexplained inordinate delay in lodging FIR and forwarding the same to the Court:- With regard to this first contention of this appeal that the FIR was ante-timed and came to be recorded later on after due deliberations and consultations to give it the colour of a promptly lodged FIR, it is revealed from the evidence of the eyewitness PW 2 that the deceased person was removed initially to the Bolpur Sub Divisional Hospital by a police vehicle. It was corroborated by the evidence of PW 3. According to the evidence of PW 4, police took the deceased from Sainthia Dangal and then he was removed to Sain Hospital by police vehicle. According to PW 7 and PW 8, the police came to the place of occurrence immediately after the commission of offence and the deceased was removed to the above hospital in a police vehicle. 18. According to the evidence of PW 12, the police vehicle of Labpur police station reached the place of occurrence immediately after the commission of offence and the deceased was taken to Bolpur Sub Divisional Hospital in the police vehicle. The above piece of evidence was corroborating with that of PW 13. The above evidence was also corroborating with that PW 15. 19. According to the preliminary investigation as recorded in the inquest report, the deceased was murdered by miscreants. None of the inquest report witnesses was produced before the Court as prosecution witness. 20. The above piece of evidence was corroborating with that of PW 13. The above evidence was also corroborating with that PW 15. 19. According to the preliminary investigation as recorded in the inquest report, the deceased was murdered by miscreants. None of the inquest report witnesses was produced before the Court as prosecution witness. 20. According to the evidence of PW 1, he was shocked at the time of post mortem examination on the body of the deceased persons and thereafter, he was pre-occupied his last rites. So, there was delay in submitting the written complaint to the police. It was submitted on the day following the date of incident. 21. According to the prosecution case, the FIR was lodged on the same day on receipt of the written complaint from PW 1. It is also not in dispute that the above FIR forwarded to the Court of learned Additional Chief Judicial Magistrate, Bolpur, Birbhum, on November 21, 2012 i.e., three days after the date of incident. 22. A Full Bench of the Hon’ble Supreme Court in Thanedar Singh vs. State of Madhya Pradesh, reported in (2002) 1 SCC 487 observed, relying upon the decision of Meharaj Singh vs. State of U.P., reported in (1995) 5 SCC 188, that delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps of the introduction of the coloured version or exaggerated story. Some external checks were prescribed by the Apex Court to determine whether the FIR had been lodged at the time it was alleged to be recoded. The relevant portion of the decision of aforesaid Meharaj Singh (supra) is set out below:- "FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon; prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, as also the names of the eye-witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Criminal Procedure Code, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.” (Emphasis supplied) 23. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.” (Emphasis supplied) 23. Coming back to the facts and circumstances of the case in hand it is not in dispute that the commission of offence came to the knowledge of the police before the inquest examination in view of the fact of bringing the deceased to Bolpur Sub Divisional Hospital and subsequently to Burdwan Medical College & Hospital in a police vehicle. According to the evidence of PW 2, the deceased disclosed the name of the accused persons in Bolpur Sub Divisional Hospital. It was corroborating with the evidences of PW 3 and PW 4. The inquest examination was conducted on November 18, 2012, at 10.45 hours with reference to Burdwan P.S. U.D. Case No.1435 of 2012. Necessary to point out that post mortem examination was held on the dead body of the deceased Admittedly, though there was explanation of delay of one day in submitting the written complaint to the police, no explanation was offered before the Court for delay of further three days in sending the FIR to the Court of learned Additional Chief Judicial Magistrate, Bolpur, Birbhum. 24. Non-disclosure of the names of the accused persons in the inquest report is one thing but in the facts and circumstances of the instant case though the police had gone to the place of occurrence and removed the deceased to hospital in police vehicle, the absence of the names of the accused persons including the appellants in such report and to described the incident as commission of murder by miscreants creates a doubt as to whether the prosecuting story was in an embryo state at that point of time and the FIR came to be recorded later on after due deliberations and consultations to give it the colour of a promptly lodged FIR. 25. In view of the distinguishable facts of the case in hand, the decisions of Rabindro Mahato (supra) and Anjan Das Gupta (supra) do not help the respondent. 25. In view of the distinguishable facts of the case in hand, the decisions of Rabindro Mahato (supra) and Anjan Das Gupta (supra) do not help the respondent. B. Declaration of the deceased regarding commission of offence by the accused persons including the appellant:- According to the evidence of PW 1, PW 12 and PW 13 in their respective evidences claimed that the deceased disclosed the names of some of the assailants at the place of occurrence to them. There was contradiction of the above evidence with those of the PW 2, PW 3 and PW 4 who stated in Court that the deceased disclosed the names of some of the accused persons including the appellant at Bolpur Sub Divisional Hospital to them. Needless to point out that all the above prosecution witnesses claimed to reach the place of occurrence immediately after the commission of offence. According to the deposition of the PW 19 (I.O.) in cross examination the PW 3 or PW 4 did not tell him during investigation that the deceased had disclosed the names of the assailants to any of them. 26. Besides, though according to the written complaint of the PW 1, the deceased became senseless at the place of occurrence after disclosing the names of the accused including the appellant to him, there was no evidence on record to show when the deceased regained his sense. The deceased person was senseless when he had been brought to the Burdwan Medical College & Hospital and after medical examination, he was declared dead. Not only that, according to the evidence of PW 19, he had collected the Bed Head Ticket of the deceased from Bolpur Sub Divisional Hospital on November 30, 2012 the same was not produced in Court. In absence of the above Bed Head Ticket the doubt with regard to regaining of the sense by the deceased cannot be ruled out. 27. The above facts and circumstance leads a reasonable doubt with regard to the disclosure of the names of any of the accused persons by the deceased to any one of the aforesaid witnesses. Needless to point out that in the written complaint names of 29 accused persons including that of the appellants with their full particulars were incorporated. 27. The above facts and circumstance leads a reasonable doubt with regard to the disclosure of the names of any of the accused persons by the deceased to any one of the aforesaid witnesses. Needless to point out that in the written complaint names of 29 accused persons including that of the appellants with their full particulars were incorporated. Noteworthy, that it has already been held hereinabove with regard to the FIR that the possibility of ante-dating the same and recording the same later on after due deliberations and consultations cannot also be ruled out. C. Identification of the accused persons:- According to the prosecution case, PW 2 witnessed the detention of the deceased at the place of occurrence. According to him, the appellant could identify the deceased when the light of the torch was focused on his face from the torch light of accused Adai Sk. The identification of the accused persons including the appellants in the darkness from the torch light of Adai Sk, which was focused on the face of the deceased person, was hardly possible particularly when it was an evening full of dark and there was no other source of light. It was not the prosecution case that any one of the accused persons was identified either by the PW 2 or by the deceased from his voice. So, the above piece of evidence was not free from reasonable doubt, the benefit of which should go in favour of the appellants. D. Withholding of the best evidences either oral or documentary before the Court to find out the truth:- Section 114 Illustration (g) of the Evidence act provides that the Court can draw an adverse inference against a party to a criminal proceeding in the event he has in possession of best evidence which would throw light in controversy withholds such evidence notwithstanding that the onus of proving does not lie on him. It appeared from the written complaint of the PW 1 that the deceased person lost his sense at the place of occurrence. The deceased person was in senseless condition when he had been brought to the Burdwan Medical College & Hospital and after medical examination, he was declared dead. It appeared from the written complaint of the PW 1 that the deceased person lost his sense at the place of occurrence. The deceased person was in senseless condition when he had been brought to the Burdwan Medical College & Hospital and after medical examination, he was declared dead. From the evidence of PW 19 it appeared that though the Bed Head Ticket of the deceased was procured by him from Bolpur Sub Divisional Hospital where he was removed from the place of occurrence and before taking him to Burdwan Medical College & Hospital. The above Bed Head Ticket was not produced by him before the Court. Therefore, the question when the deceased person regained his sense after his removal from the place of occurrence and before taking him to Burdwan Medical College & Hospital remained unanswered. The learned Trial Court failed to appreciate that the Bed Head Ticket of the deceased collected from the Bolpur Sub Divisional Hospital, Birbhum was the best evidence which would throw light in the controversy with regard to disclosure of the names of the accused persons by the deceased which was in possession of the PW 19 (the second I.O.). 28. That apart, from the deposition of PW 1 (the FIR maker) it appeared that he had gather information from one Sumanto Ghosh, the elder brother of PW 2, who was neither an eyewitness nor he was present at the place of occurrence. The aforesaid Sumanto Ghosh was not produced as prosecution witness in the trial. The evidence of PW 2 in this regard was not corroborating. But the learned Trial Court failed to draw an adverse inference against the prosecution case in accordance with the provisions of Section 114 Illustration (g) of the Evidence Act. E. Similar circumstanced accused person, namely Laltu Kazi, was acquitted but convicting the appellant:- According to the prosecution case, PW 2 was the only eyewitness of the commission of offence. The name of accused Laltu Kazi did not surface from his evidence. So, the accused Laltu Kazi was not similarly circumstanced on the basis of the aforesaid evidence. 29. The decision of Mahesh Janardhan (supra) and Naim (supra) are not applicable in this case in view of its facts and circumstances as discussed hereinabove. 30. In view of the discussions and observations made hereinabove these appeals are allowed. 31. So, the accused Laltu Kazi was not similarly circumstanced on the basis of the aforesaid evidence. 29. The decision of Mahesh Janardhan (supra) and Naim (supra) are not applicable in this case in view of its facts and circumstances as discussed hereinabove. 30. In view of the discussions and observations made hereinabove these appeals are allowed. 31. The appellants are directed to be set free expeditiously unless required in any other criminal case. 32. Let this judgment together with the Lower Court’s records be sent back to the learned Court below expeditiously. 33. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis. Md. Mumtaz Khan, J. I agree.