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2017 DIGILAW 635 (CAL)

Shankar Prasad v. State of West Bengal

2017-07-24

SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : 1. This instant appeal has been preferred against the judgment and order of conviction dated 31.07.2015 and 03.08.2015 passed by the Judge, Bench I, City Session Court, Calcutta passed in Session Case No. 83 of 2011, by which the learned trial court convicted the present appellant under Section 307/34 of I.P.C. 2. According to the appellant, the learned trial court failed to appreciate the evidence adduced by the prosecution in its proper perspectives. The trial court did not consider the cross-examination of the prosecution witnesses and that the grievance of the complainant/victim was that the present appellant had induced the other accused persons to kill the present victim. 3. Learned Counsel appearing on behalf of the state submitted that the learned trial court has considered all the material aspects and legal aspects properly and there is hardly any scope to interfere with the above finding of the learned trial court, so far as the present appellant is concerned. 4. The facts and circumstances of giving rise to this case are that the defacto complainant on 15.02.2011 on or about 12 hours was returning with his daughter from Medical College and Hospital at Calcutta (Tropical Medicine) and when they reached in front of Gate No. 1, at that time one Guddu and Sabir fired from their firearms aiming at him in order to kill him. At that time he noticed that the present appellant directed them to kill him. In the F.I.R. he did not mention the name of the present appellant and he only stated that another person was also present at that place and directed Guddu and Sabir to kill him. 5. To come to an appropriate finding, this Court is under an obligation to scrutinize the evidence of the prosecution witnesses very meticulously. At the very outset, it can be said that the presence of the present accused persons at the place of occurrence is required to be proved by the prosecution first and then to prove that the present petitioner has directed the other miscreants to commit the offence. 6. The P.W. 3 is the victim of this case. In his examination in chief he has categorically stated that he was returning from Medical College with his family members and while returning, the aforesaid the incident occurred. He was taken to hospital. 6. The P.W. 3 is the victim of this case. In his examination in chief he has categorically stated that he was returning from Medical College with his family members and while returning, the aforesaid the incident occurred. He was taken to hospital. He has also mentioned in his cross-examination that present appellant asked him to join in a political party headed by Sikha Mitra, local M.L.A. As he did not agree, so out of grudge the accused persons, fired from their firearms and the present appellant has induced them to commit the same. In his examination in chief he stated that he was coming back with his family members. It transpires from his evidence that his family consists of his wife and daughter. In the F.I.R. he did not mention that his wife was also coming back with him from ‘Tropical Medicine’. In course of examination in chief he mentioned that he was coming back from the institute of Tropical Medicine but he did not mention that he was coming back from Medical College and Hospital. In course of cross-examination he admitted that there is a political rivalry in between him and the appellant. In F.I.R. he never mentioned that at the time of incident his wife was present. He did not say in his examination-in-chief that his wife was present there also at the relevant point of time. So it cannot be said substantially that his wife was at all present or his wife was accompanying him when he was coming from Tropical Medicine/Medical College and Hospital. This P.W. 3 has also stated that his daughter was suffering from Malaria and for which she was taken to the Tropical Medicine Hospital. 7. The P.W. 4 is the wife of the P.W. 3. In course of cross-examination, she stated that her daughter was not suffering from Malaria. In course of examination in chief she stated that she and her daughter were asked to go to a side and then Sankar asked Guddu to kill the victim. Her such part of evidence has not been corroborated by the victim himself. In course of cross-examination this P.W. 4 further stated that she resides at Mallikpur in a rented house. There are other tenants also but she does not know the name of the owner of the house where she lives with her husband and daughter. Her such part of evidence has not been corroborated by the victim himself. In course of cross-examination this P.W. 4 further stated that she resides at Mallikpur in a rented house. There are other tenants also but she does not know the name of the owner of the house where she lives with her husband and daughter. Her such type of evidence is not creditworthy on the ground that she does not know the name of the owner/landlord of her house. She categorically stated she came to Medical College and Hospital at Calcutta for treatment of her daughter and they did not go to any other hospital. But the evidence of the P.W.3 does not say, that on that day, they came from Mallikpur to Calcutta Medical College and Hospital for treatment of his daughter. It is true that institute of Tropical Medicine is close by to Medical College and Hospital, but these are two separate institutions. The P.W. 4 further admitted that she knows the Medical College even before her marriage. Therefore, she has a clear idea as to where ‘Medical College’ and ‘School of Tropical Medicine’ are situated. The P.W.4, has categorically stated in her cross-examination that the report of blood test of her daughter was done at ‘Tropical Medicine’. She has also asserted by saying that the said report was collected by the victim on the same day at 3:00 pm. that means the said report was collected on 15.02.2011 (date of incident) at 3:00 pm. If the incident happened at 12 0’clock and within a shortest possible time that the victim was shifted to hospital for getting a bullet injury and had undergone a surgery, how could he collect the blood test report on that day within two or three hours from the alleged time of incident is a mystery, which the prosecution was supposed to clarify. But there is no such evidence to that effect. 8. The P.W.5, is an independent witness. He did not say anything against the present appellant and practically, according to him, he was not interrogated by the Investigating Officer. His evidence shall not help the prosecution in any way. 9. The evidence of P.W. 6, is to be considered with a pinch of salt and according to him at the relevant point of time he was near ‘coffee house’. His evidence shall not help the prosecution in any way. 9. The evidence of P.W. 6, is to be considered with a pinch of salt and according to him at the relevant point of time he was near ‘coffee house’. The victim was talking to him and at that time the incident occurred. The alleged incident took place near Gate No. 1 of Medical College and Hospital, whereas the Coffee House is quite at a distance from the Gate No. 1. According to this P.W. 6, he works as special ‘Aya’ in the Medical College and Hospital. He is not a government employee. She stated that she does not have any licence to work as ‘Aya’ in that Hospital. She also admitted that Ward Master is the head of the Ward and he never gave her permission to work as ‘Aya’. He failed to say his postal address and the road beside which he resides. In his examination-in-chief recorded on 16.04.2014, she stated that on the date of incident she took her lunch around 12 0’clock in the ground floor of the building wherein he worked. The alleged incident took place near Gate No. 1 of the Medical College and Hospital. In his examination-in-chief, he stated that on that day at the relevant point of time he was near the Coffee House, whereas in his cross-examination she admitted that he was taking her meal at 12 0’ clock, in the ground floor of the building. So there are many contradictions and variations in his testimony. However, it is established from his own evidence that at the relevant point of time he was not on this spot nor he had any occasion to see the alleged incident. 10. The P.W. 7 is the sweeper of Medical College and Hospital. In his examination-in-chief he has stated that he himself and the victim were taking the breakfast near Gate No. 1 i.e. on the back side of the Medical College and Hospital. At that time three persons came and fired on his brother. But the victim himself stated in his evidence that he was coming back with his daughter from School of Tropical Medicine and at that time the incident occurred. He (the victim) never stated that he was taking his breakfast near Gate No. 1 with P.W. 7. At that time three persons came and fired on his brother. But the victim himself stated in his evidence that he was coming back with his daughter from School of Tropical Medicine and at that time the incident occurred. He (the victim) never stated that he was taking his breakfast near Gate No. 1 with P.W. 7. Therefore, the evidence of this P.W. 7, are full of contradictions and there is a desperate attempt to embellish the prosecution case and, therefore, his statement that Sankar asked Guddu to kill the victim is not believable. The evidence of P.W. 8 is not significant so far as allegation against the present appellant is concerned. He is just a witness to the seizure and he identified his signature. The P.W. 9 has heard that victim suffered bullet injury. He was not present on this spot. The P.W. 10, did not see the incident. The P.W. 11 is also a hearsay witness. The evidence of P.W. 12 is to some extent significant because according to him police interrogated him and enquired about Guddu and no one else. Guddu is not the appellant before this Court. The P.W. 13, is the Medical Officer. According to him, the patient stated that he was injured by bullet being fired by Guddu, Shankar (present appellant), and Sabbir and another person inside the Medical College and Hospital Campus. But the F.I.R. which is lodged by the victim does not say that Shankar fired bullet from his pistol to the victim. In evidence also the victim stated that Shankar instructed others to kill him. The evidence of P.W. 14, P.W. 15, P.W. 16 are also irrelevant so far as the present accused appellant is concerned. The evidence of P.W. 17 and P.W. 18, are totally insignificant so far as the present appellant is concerned. The P.W. 19, is one of the Investigating Officer of this case. In detail, he had mentioned what he had done in course of investigation. In course of cross-examination he admitted that he never visited Tropical Medicine Department and nothing was seized from that department in course of investigation of this case. It is evident from the evidence of the de facto complainant that on that relevant day he along with his daughter were coming back from Tropical Medicine Department and thereafter the incident occurred. 11. It is evident from the evidence of the de facto complainant that on that relevant day he along with his daughter were coming back from Tropical Medicine Department and thereafter the incident occurred. 11. The main allegation against the present appellant is such that he has instructed/ induced the other convicts to kill the victim. He had no other direct role in the commission of offence. Therefore, the evidence of the de facto complainant, his relatives and the persons who were allegedly present on this spot are to be scrutinized very meticulously to see if at all the accused appellant was present there or not and at the same time if he was present what role did he play. I have already discussed the evidence of those witnesses in forgoing paragraphs and it appears to me that the evidences of these persons are absolutely contradictory to each other. No one can be believed totally or that nobody’s evidence has inspired confidence. The witnesses examined by the prosecution improved their version with regard to the alleged involvement of the present appellant time to time and sometimes they had stepped out from the prosecution case even. There had been a lot of improvements and contradictions in the testimony of the victim’s wife and their close relations. It is axiomatic truth that appreciation of evidence requires that Court should not draw conclusion or come to a conclusion by picking up an isolated statement of a witness without adverting to the statement as a whole. It transpires from the evidence that there is a long standing dispute by and between the parties due to political rivalry and sometimes regarding to get tender from the hospital authority. In such a fact situation it would be unsafe to rely on the testimony of the related witnesses. The exaggeration and improvements, which I have already discussed are of such a nature that their whole statements are liable to be disregarded on those counts. Therefore, I find it difficult to sustain the conviction of the appellants on the aforesaid counts based upon inconsistent, embellished and improved statements of the witnesses, which materially contradict their respective evidence with each other. 12. Accordingly, the appeal succeeds and it is allowed. The judgment and order of conviction dated 31.07.2015 and 03.08.2015 passed by the learned Judge Bench I, City Sessions Court against the present appellant petitioner is hereby set aside. 12. Accordingly, the appeal succeeds and it is allowed. The judgment and order of conviction dated 31.07.2015 and 03.08.2015 passed by the learned Judge Bench I, City Sessions Court against the present appellant petitioner is hereby set aside. The appellant is set at liberty at once. C.R.A.N. No. 1665 of 2017 is also disposed of. 13. Let a copy of this order and LCR be sent to the learned trial court at once for information and taking necessary action and particularly his takes steps for early release of the appellant from the correctional home unless his liable to be detained in connection with other cases.