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2020 DIGILAW 87 (CAL)

Rajkishore Shaw @ Nandu v. State Of West Bengal

2020-01-22

JOYMALYA BAGCHI, SUVRA GHOSH

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JUDGMENT Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 18.5.2012 passed by the learned Additional District and Sessions Judge, 3rd Fast Track Court, Bichar Bhawan, Calcutta in Sessions Trial No.3 (1) of 2003 arising out of Sessions Case No.64 of 2000 convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and directing them to suffer imprisonment for life and to pay a fine of Rs.3,000/- each in default to suffer simple imprisonment for one year more each. 2. Prosecution case came to be registered on the basis of a statement of Jasodhar Yadav, P.W.1 recorded by S.I., S. Ahamed, P.W.6 resulting in registration of Burtolla P.S. Case No.253 dated 17.9.1988 under Sections 302/34 of the Indian Penal Code against the accused persons. In the course of investigation of the case particularly in the light of the opinion given by Post Mortem Doctor, P.W.5, Dr. Rabindra Basu that the injuries suffered by the victim could not have been caused by the blunt side of the vojali and are consistent with that of a person who has been run over by a heavy moving vehicle. Police report praying for discharge of the accused persons was filed before the Court of the learned Additional Chief Metropolitan Magistrate, Calcutta. P.W.1 submitted a protest petition of the said report and subsequently filed a petition of complaint. Learned Magistrate took cognizance on the petition of complaint and examined P.W.1 on solemn affirmation under Section 200 of the Code of Criminal Procedure. In the course of enquiry under Section 202 of the Code of Criminal Procedure, Dr. Rabindra Basu and other witnesses were also examined and process was issued against the appellants. Case was committed to the Court of Sessions and transferred to the Court of the learned Additional District and Sessions Judge, 3rd Fast Track Court, Bichar Bhawan, Calcutta for trial and disposal. Charge was framed against the appellants under Sections 302/34 of the Indian Penal Code. Appellants pleaded not guilty and claimed to be tried. Prosecution examined six witnesses in support of its case. In conclusion of trial, learned trial judge by judgment and order dated 18.5. 2012 convicted and sentenced the appellants, as aforesaid. 3. Mr. Basu, learned Senior Counsel with Mr. Chatterjee appearing for the appellants argued that the prosecution case suffers from various contradictions, inconsistencies and/or embellishments. Prosecution examined six witnesses in support of its case. In conclusion of trial, learned trial judge by judgment and order dated 18.5. 2012 convicted and sentenced the appellants, as aforesaid. 3. Mr. Basu, learned Senior Counsel with Mr. Chatterjee appearing for the appellants argued that the prosecution case suffers from various contradictions, inconsistencies and/or embellishments. It is the consistent evidence on record that the appellant Rajkishore Shaw @ Nandu assaulted the victim on the head with blunt side of the vojali. P.W.5, Post Mortem Doctor has unequivocally ruled out the possibility of any injury on the victim being caused by blunt side of vojali. In his earlier statement to the police, P.W.1 did not speak of assault on the victim by appellants Mantu Shaw and Bhola Shaw with brickbats. Subsequently, he developed the prosecution case. The aforesaid variation in the prosecution case at the latter stage has been made to reconcile with the nature of injuries found on the victim as per post mortem report. Hence, the prosecution witnesses do not appear to be truthful and the conviction ought to be set aside. 4. On the other hand Mr. Maity, learned Advocate appearing for the State relying on the evidence of eye witnesses viz., P.Ws.1 to 4 herein vehemently argued their ocular version ought to prevail over medical opinion of P.W.5. Nothing has been placed on record that a road traffic accident occurred at the spot and the opinion of P.W.5 in court that the injuries found by him could be caused if someone was repeatedly struck with some heavy stone for a long time is supported by other evidence on record. Hence, the prosecution case is clearly established and conviction and sentence do not call for interference. 5. In spite of issuance of notice, no one appears on behalf of the complainant. 6. To appreciate the contention raised by the learned Senior Counsel on behalf of the appellants, it may be profitable to set out in seriatim the version narrated by P.W.1 in his first information report, statement on oath under Section 200 of the Code of Criminal Procedure and his deposition in Court. 7. In the first information report, P.W.1 stated that on 17.9.1988 at 5.35 hours, there was an altercation in front of premises No.148A, A. P. C. Road and Guptaji Chaurisia Pan shop. 7. In the first information report, P.W.1 stated that on 17.9.1988 at 5.35 hours, there was an altercation in front of premises No.148A, A. P. C. Road and Guptaji Chaurisia Pan shop. He rushed to the spot along with other inhabitants and found Hare Yadav (P.W.3), cousin of Palat Jadav, exchanging fists and blows with Bhola Shaw and Mantu Shaw. Palat Yadav, the deceased was also present. He pacified and separated them. He asked Hare Yadav to go to his residence while Mantu and Bhola left the place. Few minutes later, he and Palat Jadav were crossing the road and had reached the tram track when Rajkishore Shaw @ Nandu along with Bhola and Mantu confronted them. Rajkishore @ Nandu struck Palat with a vojali on his head. Palat fell down on the tram track and his brain matter came out on the road. In his statement on oath before the learned Magistrate, P.W.1 embellished the aforesaid version and added Bhola and Mantu had assaulted Palat with brickbats and stones. As a result, Palat fell down and his brain matter came out. During his deposition in court, the said witness added a new twist to the prosecution case and claimed that after Nandu had hit Palat on the head with the blunt side of the vojali, the latter had fallen down and thereafter Mantu and Bhola started assaulting Palat with bricks and stones. 8. Analysis of the deposition of P.W.1 vis-a-vis his earlier statement in F.I.R. and during enquiry under Section 200 of the Code of Criminal Procedure show that he has improved his version in stages particularly with regard to the roles of Bhola and Mantu. While in the F.I.R., he was completely silent with regard to their roles during enquiry he stated that they assaulted the deceased with brickbats and consequentially the deceased fell down on the ground and brain matter came out. In court he altered the sequence of events and stated Bhola and Mantu assaulted the deceased after the latter had fallen down on the street having received blow on the head from Rajkishore Shaw @ Nandu. In court he altered the sequence of events and stated Bhola and Mantu assaulted the deceased after the latter had fallen down on the street having received blow on the head from Rajkishore Shaw @ Nandu. These improvements and/or variations in the deposition of P.W.1 with regard to the genesis of the incident and the roles played by the appellants shake the confidence of this court with regard to the reliability of this witness in unfolding the true account of the incident resulting in multiple injuries on the head and body of the deceased culminating in his death. Subsequent incorporation of the roles of Mantu and Bhola in assaulting the deceased with brickbats and stone for a long time after he had fallen on the tram track is not far to seek. It appears to be a desperate attempt on the part of the said witness to reconcile his ocular version with the opinion of P.W.5, post mortem doctor. During investigation, post mortem doctor had opined that the injuries on the victim could not have been caused by blunt side of vojali thereby improbabilising the genesis of the incident as narrated by P.W.1 and other witnesses. He had further opined that the injuries were consistent with those which a person may suffer if he is run over by a heavy vehicle. During enquiry, Doctor clarified except injury no.7, other injuries may be caused by brick. However, internal injuries cannot be caused by hit of stone. To appreciate his opinion, I have chosen to set out the injuries found by P.W.5 as per his deposition in Court. They are as follows; "1) One Abrasion- 1" @ " obliquely placed over medium sized of right elbow joint. 2) One Abrasion - 1 " X 1" just under the chin more or less over midline. 3) One Abrasion - 1" X 2" over left side of upper most part of neck. 4) Multiple Abrasions with varying shapes and sizes varying between " X " and 1" X " over left side of face and neck. 5) One Abrasion- 2 " X 2" over right cheeck just in front of right ears. 6) One Abrasion- " X " placed obliquely over right cheeck " lateral to right alienasi. 4) Multiple Abrasions with varying shapes and sizes varying between " X " and 1" X " over left side of face and neck. 5) One Abrasion- 2 " X 2" over right cheeck just in front of right ears. 6) One Abrasion- " X " placed obliquely over right cheeck " lateral to right alienasi. 7) One Lacerated wound - 6 " X 2 " Cranial Cavity placed obliquely over an area comprising of left side temple to middle of left side of vault involving left frontal and left parietal region with comminuted fracture of all bones forming the vault and base of skull and both Maxillae and Nasal bones with gross laceration of meanings and brain and most of the brain matters was found drained out of the wound. 8) One Lacerated wound- 2 " X 1" X Cranial Cavity deep placed obliquely over right parietal region. 9) Multiple Abrasion of varying shapes and sizes with sizes varying between .4" X .3" and " X 1" over postero laternal aspect of right arm, right elbow and right fore-arm. On further dissection I found the following injuries: 1) Comminuted fracture of ribs from 3rd to 10th on right and 4th to 7th and left side with gross laceration of both lungs against the fractured rib ends. 2) Gross lacertation of right atrium and right Ventrical. 3) Rupture of Spleen 4) Gross rupture of Liver." 9. A bare perusal of the aforesaid injuries would show that amongst the external injuries found on the body injury No. 7 is one of the most vital ones being a lacerated wound measuring 6 " X 2 " Cranial Cavity placed obliquely over an area comprising left side temple to middle of left side of vault involving left frontal and left parietal region with fracture of all bones forming the vault and base of skull. Injury Nos.1 to 6 and 9 are abrasion injuries and Injury No.8 is another lacerated injury measuring 2 " X 1" Cranial Cavity deep placed obliquely over right parietal region. Injury Nos.1 to 6 and 9 are abrasion injuries and Injury No.8 is another lacerated injury measuring 2 " X 1" Cranial Cavity deep placed obliquely over right parietal region. Post-mortem doctor (PW 5) in his statement under Section 202 of the Code of Criminal Procedure opined that injury No. 7 could not be caused by blunt side of the vojali and the internal injuries like fracture of ribs, laceration of the heart, rupture of spleen, gross rupture of liver could not have been caused by hitting the victim with the bricks or stones. However, in Court PW 5 did a volte face and opined that the injuries may be caused if a person is hit by brickbats and stones for a long time after having fallen down on the road. 10. Genesis of the incident as per version of PW 1 in FIR or in his statement during enquiry under Section 202 of the Code of Criminal Procedure does not speak of assault of the deceased by brickbats and stones for a long time after the latter had fallen on the road. PW 1 came up with such version for the first time during his deposition in Court. Hence, there is clear improvement in the narration of the incident by PW 1 particularly with regard to the roles of Mantu and Bhola to make it in sync with the medical evidence adduced during trial. However, opinion of PW 5, post mortem doctor in Court with regard to the possibility of injury No. 7 and other internal injuries on the deceased being caused by brickbats or stones does not inspire confidence as it appear to be inconsistent with his earlier version during enquiry before magistrate. Furthermore, role of Rajkishore Shaw @ Nandu in assaulting the deceased with the blunt side of bhojali is wholly inconsistent with the opinion of post mortem doctor PW 5 who rules out any of the injuries on the victim being caused by blunt side of bhojali. 11. Faced with such inconsistency in the deposition of PW 1 and the prevaricating opinion of post mortem doctor (PW 5), learned additional public prosecutor strongly relied on the evidence of other eyewitnesses namely PWs 2, 3, 4 and argued that all the said witnesses deposed Mantu and Bhola had assaulted the victim with brickbats and stones after the latter had fallen down on the road. Their evidence is consistent with the opinion of post mortem doctor (PW 5) with regard to the cause of death. I am unable to subscribe to such view advanced by the prosecution for the following reasons:- 12. Firstly, version of PWs. 2 to 4 herein with regard to the assault perpetrated by Mantu and Bhola with brickbats and stones after the deceased had fallen down on the road is at variance with the statement of the other eyewitness i.e. PW 1 before the Police Officer as well as his earlier statement during enquiry under Section 200 of the Code of Criminal Procedure. 13. Secondly, even if for argument's sake such inconsistencies in the prosecution evidence are glossed over, it is difficult for me to reconcile the prevaricating opinion of post mortem doctor (PW 5) with regard to the nature of injuries suffered by the victim. PW 5 in his statement on oath under Section 202 of the Code of Criminal Procedure categorically stated that none of the internal injuries or the most vital external injury i.e. injury No. 7 could be caused by bricks or stones. Without assigning any cogent reason, he altered his opinion in Court and stated that the injuries may be caused if a person is hit by bricks and stones for a long time after having fallen down on the road. Opinion of an expert particularly a medical expert carries weight and the Court would ordinarily defer to such opinion. However, when such opinion is fraught inherent contradictions and irreconcilable inconsistencies it may not be advisable to rely on the ipse dixit of the medical witness and come to a conclusion that his opinion fits with the ocular version of eyewitnesses. Hypothetical possibilities elicited out of a medical witness like road traffic accident as in the present case may not be sufficient to rebut the prosecution case but when the medical officer contradicts himself with regard to the manner of causation of injuries on the victim his inconsistent opinion loses gravitas and strikes at the root of the prosecution case rendering the same vulnerable. Post mortem doctor (PW 5) in the present case has completely altered his opinion with regard to the nature of the vital inquires on the deceased and, therefore, I am of the view that it would be unsafe to rely on his subsequent opinion in Court to corroborate the ocular version of PWs. 2 to 4 herein and come to a finding of guilt against the appellant. 14. In view of the aforesaid discussion, I am of the opinion there are gross inconsistencies, contradictions and/or improvements in the version of the eyewitnesses, PWs. 1 to 4 with regard to the genesis of the incident. Prevaricating opinion of post mortem doctor (PW 5) with regard to the manner in which the deceased may have suffered the fatal injuries also does not inspire confidence. Therefore, I am of the view the prosecution case has not been established beyond reasonable doubt. 15. Accordingly, I am inclined to extend the benefit of doubt and acquit the appellants of the charge levelled against them. 16. Conviction and sentence are set aside. 17. Appellants shall be discharged from their bail bonds after expiry of six months in terms of section 437A Cr.P.C. 18. The appeal is, thus, allowed. 19. Copy of the judgement along with the lower Court record be sent down at once. 20. Photostat certified copy of the order, if applied for, be given to the parties on priority basis. 21. I agree.