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2018 DIGILAW 108 (CAL)

Anuwa Tuti v. State

2018-01-15

SIDDHARTHA CHATTOPADHYAY

body2018
JUDGMENT : SIDDHARTHA CHATTOPADHYAY, J. 1. Challenging the legal pregnability of the judgment and order of conviction passed by the learned Sessions Judge, Port Blair in connection with Sessions Trial No. 11/2010, the appellant has preferred this appeal. 2. Factual scenario as emerged is such that one Ramjan Ram had a friendship with the victim for about 15 years and on the day of Diwali celebration they had taken their meal. After having their meals they proceeded towards Balu Dera from Campbell Bay market. On the way they took betel leaf and when they reached near the house of the appellant, one Surender, a worker of Rajesh, who is a frequent visitor in the house of the appellant, picked up quarrel with them on trifling issues. Thereafter, there was jostling by and between the parties. Seeing them, jostling with each other the appellant brought a piece of wood in his hand and assaulted the victim on his head and for which the victim suffered severe injury on his head. Thereafter, the defecto complainant informed the incident to the brother of the victim and with the help of the police the victim was taken to hospital. After seven days the victim breathed his last. 3. Soon after the registration of FIR, the Investigating Officer has taken up investigation. In course of investigation the Investigating officer has recorded the statements of the witnesses under Section 161 of Cr. P.C, recovered the offending weapon leading to the statement of the appellant and thereafter charge sheet was submitted under Section 302/34 of IPC against the appellant. 4. To substantiate the charge under Section 302/34 of IPC, the prosecution has produced 12 witnesses from their gallery. 5. Now we should have a look upon the evidence of the PW 1. According to him, on the aforesaid day and time when he himself and the victim were proceeding towards their house they found one Surender standing by the side of the road with a bicycle and there was jostling by and between the parties. Watching that jostling, suddenly the appellant came to the spot with a wooden stick in his hand and assaulted the victim by that wooden stick. According to him when the victim fell down he went to the house of the victim's brother by his cycle and reported him about the incident. Watching that jostling, suddenly the appellant came to the spot with a wooden stick in his hand and assaulted the victim by that wooden stick. According to him when the victim fell down he went to the house of the victim's brother by his cycle and reported him about the incident. The victim's brother Kamal came to the spot with the scooter and he intimated the incident to the police over telephone. The victim was taken to the hospital and defecto complainant came back to his house. At or about 9.30 p.m police come to his house and he narrated the incident and his statement was recorded by the Investigating Officer, which is treated as FIR. In course of cross-examination he stated that there was little clash with Surender who is another accused of this case. It was suggested to him that due to jostling the victim fell down and as a result he sustained bleeding injuries on his head, but he turned down the said suggestion. In his cross-examination he specifically stated that the incident took place at or about 2.00 p.m whereas in his examination-in-chief he stated that at 2.00 p.m they had been to Campbell Bay market. They proceeded towards Balu Dera at or about 4.00 p.m FIR speaks that the incident took place at or about 4.00 p.m Therefore, so far as time of offence is concerned, I find contradictory statement from this PW 1. It appears from the deposition sheet that the defecto complainant is an unlettered person so some latitude can be given to him. 6. PW 2 is the elder brother of the victim, who got the information of the incident from PW 1. According to him on the day of Diwali (24.10.2003) at or about 4.40 to 5.00 p.m the defecto complainant came to his house and reported the incident. He rushed to the spot and found the victim lying on the road. He found bleeding injuries on the head of the victim. He requested Auto Rickshaw drivers to take the victim to the hospital but they refused. But one such Auto Rickshaw driver agreed and took them to the hospital. He specifically stated that before going to the hospital they reported the incident to the police over telephone. Police also came to the spot and at their instance the Auto Rickshaw driver agreed to take them to hospital. But one such Auto Rickshaw driver agreed and took them to the hospital. He specifically stated that before going to the hospital they reported the incident to the police over telephone. Police also came to the spot and at their instance the Auto Rickshaw driver agreed to take them to hospital. The victim died in the hospital after seven days. He identified the appellant on dock. In course of cross-examination he stated everything relating to the offence. In course of cross-examination, he admitted that the victim used to consume alcohol occasionally, but on that day he did not take alcohol. After sometime he stated in cross-examination that he is not in a position to say whether the victim and his associate consumed alcohol or not. He further stated that the defecto complainant and the victim left his house together at or about 2.00 p.m/3.00 p.m and incident of assault was reported to him in between 4.30 p.m to 5.00 p.m According to the FIR at or about 8.00 a.m the defecto complainant went to the house of the victim at Satellite Colony. 7. PW 3 is not a witness to the occurrence. He is one of the signatories of the inquest report. He also put his signature in a document when the dead body was handed over. 8. PW 4 is the Auto Rickshaw driver, who stated that on that day he had taken the victim to the hospital at the instance of the police. 9. Evidence of PW 5 is not much relevant. 10. PW 6 is a local witness. According to him, when he was coming back from Shiva Temple at or about 8.45 p.m, the SHO of Campbell Bay came in front of his house and told that a dead body was lying near his house and he sought for his help to carry the dead body from that place to Auto Rickshaw. He assisted accordingly. He was declared hostile by the prosecution. After declaring the witness as hostile, the prosecution put him some questions that he told the police that one half pant of accused was seized in his presence. Significantly enough, the evidence of PW 6 ‘after returning from Shiva Temple at or about 8.45 p.m SHO of Campbell Bay came in front of his house’ was not challenged by the prosecution. Significantly enough, the evidence of PW 6 ‘after returning from Shiva Temple at or about 8.45 p.m SHO of Campbell Bay came in front of his house’ was not challenged by the prosecution. This indicates that till 8.45 p.m the victim was not shifted to the hospital. Whereas evidences of PW 1 and PW 2 in this regard are completely different. 11. PW 7 stated that on the relevant date he was on law and order duty at Campbell Bay. On reaching there he found a person was lying unconscious having injury in his head. The said person was lying unconscious in front of the house of present appellant. Considering the critical condition of the injured he asked one Gurucharan Singh and Joseph Baraik (PW 6) to assist him to take the person to the hospital. This part of the evidence of PW 7 has to be considered along with the sketch map to ascertain whether Gurucharan Singh and others are the local residents or not. The rough sketch map along with index are marked as Exhibit 11 and Exhibit 11/1. The said sketch map does not speak that one Gurucharan Singh is the neighbour of the appellant, but Joseph Baraik is a neighbour. Therefore PW 7's evidence that Gurucharan Singh is a neighbour cannot be substantiated, if we accept the sketch map prepared by the Investigating Officer. This PW 7 further stated that Gurucharan Singh went to Public Health Centre, Campbell Bay along with the injured in the said Auto Rickshaw. Significantly enough, PW 2 the elder brother of the victim who claimed to have taken the injured to the hospital with the assistance of police did not mention the name of the Gurucharan Singh. According to this PW 7, the injured was unable to speak anything at that particular point of time i.e. to say at or about 7.45 p.m when he arrived at the spot. The statement of Investigating Officer is very hard to believe on this point because in examination-in-chief he categorically stated that he found one person in senseless condition lying beside the road and on query the injured person stated his name as Kumar Pradhan. The statement of Investigating Officer is very hard to believe on this point because in examination-in-chief he categorically stated that he found one person in senseless condition lying beside the road and on query the injured person stated his name as Kumar Pradhan. According to him, he reached at the spot at or about 7.00 p.m He did not say that PW 7, the Sub Inspector of Police also arrived at the spot at or about 7.45 p.m According to PW 7, the victim was unable to speak anything whereas according to PW 12, the victim disclosed his identity as Kumar Pradhan. Therefore there are substantial contradiction so far as the evidence of PW 7 and PW 12 is concerned. 12. It was argued on behalf of the state respondent that the offending weapon was seized pursuant to the statement made by the appellant under Section 27 of the Evidence Act. On perusal of the evidence on this point I found that the offending weapon was recovered from behind a banana tree. There is no evidence that the said offending weapon was kept concealed in such a place which cannot be visible by others. The statement speaks that it was recovered behind the banana tree and not from any bush. In such circumstances, it was the duty of the Investigating Officer to record two statements i.e. before recovery and after recovery. But in this case that has not been done. 13. Now this Court wants to sum up the evidence to ascertain how far the prosecution story believable or creditworthy. Practically PW 1 claimed to have seen the incident. PW 2 arrived at the spot after being informed by PW 1. PW 2 categorically stated that after being informed by PW 1 he had narrated the incident to the Police Station over telephone from his landline. PW 7 claimed to have arrived on the spot as he was on law and order duty. He never said that after getting telephone or being directed by SHO, he had come to the spot. If at all PW 2 has given any information that ought to have been at least diarised by the Police. In this case no police personnel has stated that any GD entry was at all there. 14. Doctor's evidence is also required to be scrutinised along with the evidence of others. The concerned Doctor has proved Exhibit 8. If at all PW 2 has given any information that ought to have been at least diarised by the Police. In this case no police personnel has stated that any GD entry was at all there. 14. Doctor's evidence is also required to be scrutinised along with the evidence of others. The concerned Doctor has proved Exhibit 8. It appears from Exhibit 8 that patient was brought to the hospital at or about 8.00 p.m by two persons. 15. The Doctor did not mention that the patient was brought by Police or by an Auto Rickshaw driver. However, patient was brought at 8.00 p.m and the Doctor started imparting medical treatment at 8.15 p.m The said Exhibit 8 further speaks that one constable Mr. B.C Tiwari had come to the Hospital with the patient. In such circumstances, evidence of PW 8 is also required to be scrutinised. This PW 8 has simply stated that he had registered the formal FIR. The said written FIR was prepared by the SHO. He never said in his evidence that he at all went to the hospital with the patient. 16. Now this Court is to consider the FIR itself to ascertain the veracity of the prosecution case. It appears from the formal FIR that the date and hour or occurrence was at 4.00 p.m The number of FIR is 62/03. It was reported to the Police Station at 9.50 p.m of 24.10.2003 whereas the date of despatch to Court was on 27.10.2003 which has not been explained by the prosecution. Reporting of the incident at 9.50 p.m is not unnatural because the Investigating Officer examined PW 1 under Section 161 Cr.P.C at 9.30 p.m But the question is if PW 2 had informed the Police Station over telephone what was the contention of that information. No GD entry was produced nor even mentioned by the prosecution. Before lodging of FIR, PW 8 took the victim. There is no endorsement by the Doctor if the said Police Constable disclosed him regarding the story of assault. PW 7 categorically stated that he found the victim lying on the road in unconscious condition. PW 7 came to the spot before the Investigating Officer came. PW 7 although stated that the victim was unconscious, but the Investigating Officer stated that he ascertained the name of the victim from the victim himself. PW 7 categorically stated that he found the victim lying on the road in unconscious condition. PW 7 came to the spot before the Investigating Officer came. PW 7 although stated that the victim was unconscious, but the Investigating Officer stated that he ascertained the name of the victim from the victim himself. At the time of sending the victim to the hospital the Investigating Officer sought for medical opinion in regard to the following point i.e whether the victim took alcohol on that day or not. Doctor opined that the same could not be ascertained. 17. The learned Session judge has relied on the recovery of the weapon in terms of the Section 27 of the Evidence Act. In the statement recorded by the Investigating Officer it appears that the said offending weapon was recovered from behind the banana tree. The seizure list was prepared which speaks that the same was recovered besides the railing in front of the house of the appellant. There is no whisper that the said offending weapon was kept concealed in such a fashion so that it would not be visible for others. The evidence of PW 1 cannot be taken into consideration as a sacrosanct one on the ground that in course of recording his statement under Section 164 Cr.P.C he stated that he himself and the PW 2 were going towards the spot and at that time he suddenly slipped in water and with a view to changing his dress he went back to home and requested PW 2 to take victim to hospital, but this part of his evidence has not been mentioned either in FIR or in course of evidence before the Court. 18. Therefore, in the midst of such discrepancies in evidence it seem to me that it would be unsafe to hold that the appellant is guilty for committing the offence under Section 304 II of IPC. As a consequence the impugned judgment and order of conviction dated 31st August, 2016 passed by the learned Sessions Judge, Andaman & Nicobar Islands at Port Blair is hereby set aside. The appellant is on bail and he be set at liberty at once. He be discharged from his bail bond too. 19. Let a copy of this order along with LCR be sent to the learned Trial Court for information and taking necessary action.