Budharu Roy vs State of West Bengal

Indrajit Chatterjee, J.—This court is hearing this appeal as against the judgment and order of conviction dated 30-08-2008 passed by the learned Additional Sessions Judge, 1st Court, Siliguri, District - Darjeeling in Sessions Trial No. 12/2003 arising out of Sessions Case No. 7(1) 2003 which arose out of G.R. Case No. 533/99 (43/99) dated 21-5-1999 of Kharibari Police Station. As per that order of conviction, the present appellant was convicted in respect of the charge punishable under Sections 453 /323 of the IPC and was sentenced to suffer rigorous imprisonment for one year and also to pay fine of Rs. 1,000/- in respect of the offence punishable under Section 453 of the IPC. The present appellant was also convicted in respect of the offence punishable under Section 323 of the IPC and was separately sentenced to suffer rigorous imprisonment for six months with further direction to pay fine of Rs. 1,000/- each, i.d. to suffer rigorous imprisonment for two months. However, learned trial court ordered that the sentences shall run concurrently. For the appreciation of the appeal, relevant fact before the learned trial court can be set out below:-

That one Bela Rani Roy reported to the Officer in Charge of Kharibari police station on 21-5-1999 at about 1200 night or 1 a.m. and filed a written complaint which was marked as Ext. 5 alleging, inter alia, that in the intervening night of 20/21-5-1999 at about 1-00 hours she was alone in her house with her husband while other family members were sleeping in the room. The F.I.R. further disclosed that at that point of time, two persons entered into that house by breaking open the door of her room. She woke up from her sleep and raised alarm. She further claimed in the F.I.R. that one ''Koopi'' (one kerosene lamp) was lying in that room at that point of time and her husband Biswanath Roy who also woke up and caught hold of the said two persons and they started jostling and one person also started hitting the F.I.R. maker. The F.I.R. further disclosed that out of those two persons, one instructed his companion to open fire and thereafter one of them opened fire from the Pipe-gun and her husband was shot and he fell down on the floor of the room. Thereafter, local people came. This appellant could be recognized by the de facto complainant in the light of the ''Koopi'' out of the two intruders. His relationship could be established as husband of the niece of the complainant, resident of Panitanki. The story of dispute between the said accused and husband of the complainant also came out from the F.I.R. and the dispute was as regards monetary matter for which salish was going on.

On receipt of the F.I.R., Kharibari P.S. Case No. 43 of 1999 dated 21-05-1999 under Sections 459 /307 /34 of the IPC and under Section 25(1)(a) /27 of the Arms Act was started. During the course of investigation, the Investigating Officer of this case examined the available witnesses, seized that ''Koopi'' as per seizure list marked as Ext. 1/1, collected one discharge certificate in respect of the victim, Biswanath Roy (Ext. 4), collected also the injury report of the said victim marked as Ext. 3. The Investigating Officer, however, could not recover any weapon of offence or any cartridge. It may be noted that the charge sheet was submitted on 17-8-1999 and during that period of time, the accused/appellant could not be arrested and in the charge sheet, he was shown as absconder. However, this accused was released on anticipatory bail in Criminal Misc. Case No. 20 of 2003 disposed of by the learned Additional Sessions Judge, 1st Court, Siliguri and this accused surrendered on 14-01-2003 and was naturally released on bail.

The case was committed to the court of sessions and the Sessions Case No. 7(1) 2003 of the District of Darjeeling was registered. This case ultimately came before the learned trial court and the conviction was recorded in Sessions Trial No. 12 of 2003 about which I have stated earlier.

After the case was received by the learned trial court, the learned trial court was pleased to frame charge against the accused for the offence punishable under Section 459 /307 of the IPC to which the accused pleaded not guilty and claimed to be tried. Before the learned trial court as many as nine witnesses were examined including both the victims, doctor, Investigating Officer etc. Apart from such oral evidence, prosecution relied upon several documentary evidence like F.I.R., seizure list, discharge certificate etc. That kerosene lamp was produced before the court and was marked as material Ext. 1. The defence preferred not to adduce any oral or documentary evidence. The accused was examined under Section 313 Cr.P.C. The accused pleaded that he was implicated falsely.

It was submitted by Mr. Biplab Kumar Mitra, learned counsel appearing on behalf of defence that the sub-stratum of the prosecution story can very well be challenged by the accused to extract benefit of doubt from this Court. He submitted that it was the positive case of the prosecution that the miscreants entered into that house by breaking open the door made of split bamboo but unfortunately for the prosecution the said were not seized by the I.O. He extended the argument by saying that the seizure list regarding the lamp and also the Jinanama relating to that said lamp were produced before the Court but not in original and carbon copies were placed and such documentary evidence is inadmissible because of the bar under Section 165 of the Evidence Act. He further submitted on this point that this story of seizure of that lamp cannot be believed by this Court as the said seizure was made after a gap of seven days.

As regards the F.I.R. it was argued by Mr. Mitra that the F.I.R. was forwarded to the learned Magistrate having jurisdiction under Section 157(1) of the Code of Criminal Procedure after a gap of six days. He repeated that the F.I.R. was lodged on 21.05.1999 at about 10 P.M. and it was placed before the learned S.D.J.M. having jurisdiction on 27.05.1999. His line of attack regarding that there was every chance of concoction in the F.I.R. particularly considering this fact that the accused and the de facto complainant already were in inimical terms which was admitted even by the de facto complainant in the F.I.R. He submitted that this Court must take said endeavour to consider the story of enmity between the parties and this case could be an eye on this aspect.

He submitted by taking the injury report of the victim to show that the victim P.W. 4 did not disclose to the doctor (P.W. 7) the name of the assailant and the story made out by the prosecution in the F.I.R. was also not told to the doctor and the doctor was apprised that the victim sustained injury by the attacks of the dacoits. He also took me to the injury report of the victim to show that the victim was discharged from the said hospital on the next date of his admission. I like to say here that the victim was admitted on 21.05.1999 and that he was discharged on 22.05.1999 with some instructions made on the reverse side of that discharged slip. Mr. Mitra further submitted on this point that in the injury report it was not mentioned where the victim received such injuries, whether in his house?

He further submitted that both P.Ws. 1 and 4 deposed in one voice that P.W. 4 was hit by a bullet but unfortunately for the prosecution the doctor did not depose that the bullet was found from the body of the victim. The doctor opined that the victim received simple injury. Learned advocate''s question was that where the bullet went and it ought to have been answered by the prosecution. Learned advocate took me to the evidence of P.W. 4 wherein he claimed that he remained in the hospital for seven days with an eye to make the injury covered as grievous one as per the Penal Code. He further submitted that if the alleged incident took place inside the house and the victim sustained bleeding injury then the I.O. of this case did not seize any resemblance of blood from that house to fix the place of occurrence.

Regarding the evidence of P.W. 6 my attention was drawn to the cross-examination of that witness. The daughter of P.W. 4 who deposed "My father goes to Nepal. On the date of occurrence two my father had gone to Nepal but he had returned back home on the very night but I cannot say what time he returned." Mr. Mitra tried to submit that the place of occurrence could not be fixed by the prosecution and there is enough of doubt that actually the incident took place inside the house of P.Ws. 1 and 4. He also took me to the evidence of this witness P.W. 6 who deposed "I cannot say - whether the police questioned me or not". Thus it was suggested by Mr. Mitra that this evidence should not be taken into account at all on this ground only.

A legal point was submitted by Mr. Mitra by taking me to the decision of the Apex Court as reported in Bhagirath Vs. State of Madhya Pradesh, wherein the Apex Court held that the prosecution must stand on its own legs and cannot take advantage of the weakness of the defence. It was further observed by the Apex Court that the Court cannot on its own make out a new case for the prosecution and convict the accused on that basis. In that case two accused persons were acquitted and the third one was convicted and the Apex Court held that when no prosecution for offence of attempt to murder the sub-stratum of the evidence given by the eye witnesses examined by the prosecution was found to be false the only prudent course left open to the Court was to throw away the entire prosecution case. Learned counsel also relied upon another decision of the Apex Court as reported in Shivlal and Another Vs. State of Chhattisgarh, wherein the Apex Court in the facts and circumstances of this case held that the prosecution''s case was doubtful and there were material contradictions in the statements of the prosecution witnesses and in such a case the Apex Court was pleased to acquit the accused in respect of the charge. In that the Apex Court further held that the non-sending of the F.I.R. to the Magistrate having jurisdiction under Section 157(1) of Cr.P.C. will cast a doubt on the prosecution case.

Mr. Mitra further supplemented his argument by saying that when the name of the assailant was not disclosed to the doctor that will cut the prosecution story from its root. He cited three decisions of the Hon''ble Apex Court

1) reported in Sujoy Sen @ Sujoy Kr. Sen Vs. The State of West Bengal, , a case based on circumstantial evidence where it was claimed by P.W. 4 before the court that he saw the appellant to enter into the house where the daughter of the appellant was murdered but when he was cross-examined, he told that he did not tell it to the Investigating Officer and as such very naturally the Apex Court did not rely on such witness and acquitted the appellant on that ground along with other grounds,

2) reported in Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, , it was a case under Section 304B of the I.P.C. and the Sessions Judge on appreciation of evidence acquitted the accused person which was reversed by the High Court and it came before the Apex Court. The Apex Court went with the learned Trial Court and said (vide paragraph-16 of the judgment) that in all cases the theory that F.I.R. cannot be treated as an encyclopedia cannot be taken to be a rule. The Apex Court was not at one with the approach of the High Court in assessing the F.I.R. as ''broad story'' of the prosecution was not mentioned, which was enough to affect the credibility of the F.I.R. The broad story as depicted in that case was that in the suicidal note there was no mention of the name of the accused person and that in the F.I.R., it was not mentioned what was demanded and what was paid, and,

3) reported in Badam Singh Vs. State of Madhya Pradesh, a very important decision on circumstantial evidence where the Apex Court did not believe the version of the witnesses to put a stamp of conviction on the accused-appellant.

It is needless to say that in assessing principle decided by the higher Courts such principle must be taken into consideration vis-�-vis the fact of the particular case. The fact before the Apex Court in Badam Singh (Supra) was thus, that the accused and the deceased travelling on foot with forest officials, the accused-appellant alleged to have suddenly put his gun against back of the deceased and fired, accused thereafter allegedly pressing neck of the deceased and strangulating him. Seeing all these the forest officials gets scared and started running straight up to the third village without caring to go back to help the victim and did not inform the villagers which villages they crossed as regards the incident so that they could render help. Their conduct of the witnesses was not believed by the Apex Court. There were other factors for acquitting the accused appellant, Badam Singh.

Learned counsel took me to paragraphs 15 and 16. In pargraph-15 relates to non-sending of the F.I.R. in right time but that point was not answered in favour of the defence. In paragraph-16, the Apex Court took the view that even if the witnesses speak like a parrot their evidence for that reason cannot be held to be truthful. The Apex Court did not concur with the High Court and deprecated the non-scrutinizing the evidence in some details.

Mr. Mitra ended his argument by that the scenario before the learned Trial Court, this Appeal Court may take into consideration the decision of the Apex court as delivered in Bhagirath (supra). It may be noted that in previous paragraph, I have taken note of this judgment in details.

It was argued by Mr. Keshari, learned Advocate appearing on behalf of the prosecution, that the decisions cited by his counter-part, Mr. Mitra, cannot be applied on the factual matrix of those cases. Regarding the case of Shivlal (supra), it was argued by Mr. Keshari that in the case, the F.I.R. was not at all forwarded to the court but in the instant case, the F.I.R. was forwarded after a gap of six days. Regarding the judgment of the Apex Court in re-Bhagirath (supra), it was the argument of the learned Prosecutor that in the said decision, the Apex Court did not believe the version of the witnesses and as such, the 4th accused, who was the appellant, was also acquitted. But in the present case before the floor of this Court, there is no reason to disbelieve the evidence of P.Ws. 1, 4 and 6.

Regarding the cases in re-Sujoy Sen (supra), re-Arulvelu (supra) and re-Badam Singh (supra), Mr. Keshari submitted that the factual matrix of those cases cannot be match with the present case before the floor of this Court.

Regarding the non-seizure of broken door as claimed by Mr. Mitra, Mr. Keshari submitted that this may be treated as defect in the investigation and for that reason, the prosecution case cannot be thrown out. Regarding the non-seizure of blood from the place of occurrence, it was the submission of Mr. Keshari, by taking me to the evidence, that not a single witness deposed that drops of blood actually fell on the floor of the house, the nature of the floor was not disclosed by the witness like whether it was a marble floor or a floor made of ceramic tiles or would be a wooden floor. He further submitted that if the injury report of the doctor and the evidence of the doctor, i.e. P.W. 7 is scrutinized then it cannot be said that the injury received by the victim was not that much that blood fell on the floor of that house.

Regarding the main argument of the defence as regards non-disclosure of the name of the assailant to the doctor, it was submitted by the learned Prosecutor that what the victim told to the doctor that was taken note of and there is no way to go back from that and if the injury report is believed then even there is no reason to discard the evidence of three eye witnesses, i.e. I repeat P.Ws. 1, 4 and 6. He further submitted that this case is not a case based on circumstantial evidence but this is a case of direct evidence against the appellant. Regarding the enmity between the parties as came out from the F.I.R. itself, it was the submission of Mr. Keshari that the said enmity was the motive of the incident. Regarding the argument of the defence as regards that kerosene lamp, it was argued by Mr. Keshari that even if, this story is not believed by this Court then, even the appellant being very much known to the victim party their evidence cannot be brushed aside simply because there was no light in the said room. Regarding the non-seizure of the bullet by the Investigating Officer, Mr. Keshari submitted that it was the fault of the Investigating Agency for which the defence cannot get any benefit.

In reply, it was argued by Mr. Mitra that had the F.I.R. been lodged earlier prior to the examination of the doctor, the argument of Mr. Keshari would have been swallowed. But here the earliest disclosure was made by the victim (P.W. 4) to the doctor and as such, the evidence of the doctor on that score has a great value. He further added that the evidence of P.W. 6 should not be believed at all as he tried to embellish the evidence and to give more flavour to the prosecution case when he deposed that he remained in the hospital for 10 days. Mr. Mitra submitted that due to the non-seizure of broken door and the bullets, a doubt has been cast on the prosecution story as to whether the incident at all took place in that place or not.

At this stage, myself asked to Mr. Mitra as to the long abscondence of the present appellant from his village. I admit that mere abscondence from the place of occurrence is by itself no ground to convict one person as it is very natural that here in instituting a criminal case, every person will try to flee but such abscondence will give one element in favour of the prosecution. Myself informed the defence counsel that this accused actually surrendered before the A.C.J.M., Siliguri in the month of January, 2003. It may be noted that the charge sheet was submitted on 17-08-1999 and this accused was released on bail under Section 439 of the Cr.P.C. by the learned Additional Sessions Judge, Siliguri, in Criminal Misc. Case No. 20 of 2003. Mr. Mitra submitted that actually the accused did not abscond but surrendered to the authority roughly after two years.

As regards the argument of Mr. Biplab Mitra, regarding the non-seizure of the broken door, non-seizure of the bullet, this Court is of the opinion that it was the fault of the investigating agency and benefit practically accrued to the accused and prosecution cannot suffer for this. The evidence of the daughter (P.W. 6) is candid that bullet was shot from one fire arms and the bullet was found inside the house which was handed over to the police. no question was asked to the I.O. by the learned P.P. as what was the fate of the bullet. The bullet was not found in the body of the victim (P.W. 4) when he was treated by the doctor. This was enough for the learned Court to acquit the accused in respect of the charge under Section 307 of the Indian Penal Code and also in respect of the Arms Act. As regards the alleged non seizure of stains of blood from the floor of the house of P.W. 1 and P.W. 4, this Court is of the view that nothing actually came out as to whether the floor was made of wood or ceramic tiles or it was one earthen floor. There is also no specific evidence that drops of blood fell on such floor. The evidence of P.Ws. is totally absent in this regard. I have taken into consideration the injury suffered by the victim and the nature of injury was not that he bled profusely. The F.I.R. was registered after 14 hours and even if blood fell in the ground it is anybody''s guess whether that was still there. Thus this argument of Mr. Mitra on this count cannot secure the confidence of this Court.

Regarding the non-sending of the F.I.R. immediately to the learned Trial Court, this Court has already observed that the decision of the Apex Court as cited by Mr. Mitra in Shivlal''s Case (supra) will not apply in the factual matrix of this case. In that case the F.I.R. was not at all forwarded to the learned Magistrate having jurisdiction under Section 157(1) of the Cr.P.C. This Court can safely rely upon the decision of the Apex Court as reported in Sheo Shankar Singh Vs. State of U.P., wherein the Apex Court held that unless any prejudice was caused to the accused or that the investigation was made in a perfunctory manner, sending of the F.I.R. instantly to the Magistrate having jurisdiction, one is administrative found and for that reason the prosecution case cannot suffer. Thus I repeat that unless it is shown that due to non-sending of the F.I.R. instantly to the Magistrate if no prejudice would be shown to the accused or that investigation was made in a perfunctory manner the accused cannot get any benefit for the said lapse on the part of the prosecution.

On this point I also like to rely upon the decision of the Apex Court as reported in (2002) 6 SCC 107 Sandeep Vs. State of Uttar Pradesh wherein the Apex Court categorically held that when the F.I.R. was actually recorded without delay and the investigation started on the basis of that F.I.R. and there is no other infirmity on the part of the investigating agency then, however, improper or objectionable delay in receipt of the report by the Magistrate concerned in absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.

It was mainly argued by the defence that the name of the assailant who was known to the victim party was not disclosed to the doctor who attended the victim that being the earliest piece of information being divulged to a public servant who has no interest over the matter. On that score three decisions were cited which I have taken note of. I repeat Sanjoy Sen (supra), Arulvellu (supra) and Badam Singh (supra). The decisions referred to above cannot match with the fact of this case as I have discussed while noting the argument of Mr. Mitra, now the question is what would be the fate of the non-disclosure of the name of the assailant to the doctor. Admittedly, P.W. 4 did not divulge the name of the assailant to the doctor or the doctor did not note it in the injury report. In the injury report the doctor made out a third case that the victim was admitted with alleged history of gun-shot injury by a group of dacoits. Along with charge-sheet the injury report of the victim was placed by the Officer-in-charge of the concerned P.S. on 28.08.1999. It may not be out of place to mention that the incident took place in the intervening night of 20-21.5.1999. This shows that the injury report was collected later on after a long gap. Naturally, I cannot rely on the version of the doctor too much on such a belatedly produced injury report. This injury report is also dated 21.08.1999 and I have already stated that the alleged injury took place in the night of 20-21.05.1999. Thus the history of the injury which is not at all the case of the victim party cannot be relied upon.

The expert evidence is requisitioned to help the Court to dispose of the case and the report of the expert cannot override the evidence of the eye witnesses who candidly deposed that it was a case of night trespass and the victim was hit by a bullet. The doctor who was examined as P.W. 7 deposed that the injuries found in the person of the patient can be caused by a blunt object, if it is projected under pressure such as gun-shot. The said doctor noted two injuries (1) Lacerated injuries over scalp of size 3" � 2" � 1". (2) Linear abrasion over interior abdominal wall. These injuries are more or less matching with the evidence of the eye-witnesses that is P.Ws. 1, 3 & 6. Thus this Court is of the view that simply because the doctor did not note the right cause of injury and made out a third case the Court is not going to rely on that portion of the medical report.

The question which is yet to be answered is whether the case of Bhagirath (supra) will apply in the present case. I duly discussed the matter earlier, taking the risk of repetition I can say that in that case the Apex Court did not believe the version of the prosecution as regards the murder of the victim as the eye witnesses examined by the prosecution were found to the false. In the instant case before the floor of this Court I have gone through the evidence of P.Ws. 1, 2 and 6. Keeping my searching eyes on their evidence I am satisfied that what they deposed was truthful. The claim of P.W. 6 that her father went to Nepal on that date cannot go in favour of the defence as she specifically answered that her father returned back on that night. It is true that she could not say at what point of time her father returned on that night and it is of no consequence. It is true there was enmity between the parties but it is a well settled principle of law ''the enmity cuts both ways''.

I am at one with Mr. Mitra, the learned Advocate for the defence that one ''kerosene lamp was lighting'' at the time of the incident as claimed by the prosecution was introduced by the investigating agency just to give more flavour to the prosecution case. This court cannot be unmindful of the fact that the original seizure list and the Zimmanama in respect of that kerosene lamp were not produced before the learned Trial Court and only carbon copies were produced, not only that those were not forwarded to the Magistrate having jurisdiction soon after the seizure. This alleged seizure was effected after 7 days of the incident.

Now the question is even if no kerosene lamp lighting at that point of time whether the identification of the appellant could have been termed as doubtful identification. This court is satisfied that the appellant and the victim were relations and naturally they were very much close to each other. There was dispute between the witnesses and the appellant and as such it cannot be said that even if the kerosene lamp was not there the identification may be treated as doubtful identification.

Thus, considering every aspect this Court is satisfied that the learned Trial Court was right in convicting the accused in respect of the charge both punishable under Sections 453 and 323 of the Indian Penal Code.

The findings of the learned Trial Court, conviction and sentence are all confirmed. The appeal being devoid of any merit is dismissed on contest.

The accused/appellant is enjoying bail as granted by the learned Trial Court the bail is hereby cancelled. The accused/appellant must surrender himself before the learned Trial Court within 15 days from the communication of the order to him through the Officer-in-Charge, Kharibari Police Station. The learned Trial Court will comply this order within 7 days from the receipt of the LCRs.

I have noted in details in this judgment that this accused absconded for about 3 long years. It is true that the abscondence by itself cannot be a ground to presume that the accused was the culprit but it will give further handle to the prosecution to prove the charge against the accused. I am not unmindful regarding this particularly when this is a case of direct evidence.

Let a copy of this judgment along with the LCR be forwarded to the learned Trial Court at once.

Certified copy of this judgment, if applied for, be supplied to the parties as per rules.