Chandi Mal & Ors. vs The State of West Bengal

The subject matter of challenge in this appeal is the judgment and order of conviction dated December 21, 2004 of the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentence dated December 22, 2004 passed by the Additional Sessions Judge, 3rd Court, Bankura in Sessions Trial No. 1 (6) 1996 arising out of Sessions Case No.6 (11) 1994 to suffer rigorous imprisonment for life and to pay a fine of Rs.2000/- each in default to suffer rigorous imprisonment for a further period of one year.

On May 27, 1992 Sri Akhil Chandra Malakar (PW 4) Probationary Sub-Inspector, attached to Onda Police Station, on receipt of an information from Dr. Dhrubajyoti Patra (PW 8), Medical Officer of Krishnanagar Public Health Center, conducted inquest examination over the dead body of the aforesaid deceased. The aforesaid doctor Dr. Dhrubajyoti Patra (PW 8) and Smt. Satyabati Lareng (PW 3), nurse attached to the above health center identified the dead body. Inquest report was prepared by the PW 4 with reference to Onda P.S. U.D. Case No.8/92 dated May 27, 1992. According to the above inquest report, there were injuries on the back of the head on upper portion of the right and outer portion of the left knee of the deceased. The PW 3, PW 5, PW 8 and PW 15 were the witnesses of the above inquest report. According to the opinion of the witnesses as incorporated in the inquest report on the basis of the preliminary investigation certain miscreants committed murder of the deceased and then flew away by throwing the dead body in the water under a ditch beside Onda village.

On May 28, 1992 a written complaint was lodged in the Onda Police Station, District-Bankura by the widow of the deceased person informing the above incident. Formal FIR bearing Onda P.S. Case No.50/92 dated May 28, 1992 was registered for commission of offence by the appellants punishable under Sections 302/34 I.P.C. at 16.45 hours on the basis of an entry made in the General Diary in the above police station. The PW 11 was appointed as investigating officer in the case.

According to the prosecution case, on May 26, 1992 at 19.00 hours one Sagar Mal (deceased) was going to "Hazrabandh" of Mouza-Jamjuri, Police Station-Onda for taking bath. On the way at Mansatala the appellants started quarrelling with him out of their previous grudge on an issue. All of the appellants were in drunken state. Appellant Leul Mal caught hold of the deceased and Mangal Mal assaulted him on his head with an iron rod. Appellant Chandi Mal assaulted the deceased with a ''Mugur'' on different places of his body. Hearing the hue and cry from the residence of the deceased, his wife (PW 1) rushed to the place of occurrence. The appellants assaulted her also. When one Budhadeb Mal (PW 2), a villager made an attempt to rescue the deceased, he was also assaulted by the appellants. After commission of murder of the deceased the appellants threw the dead body in water under a ditch. The PW 1 could not find out the dead body of her husband due to darkness prevailing in the area. Thereafter, villagers including Shyamapada Mal (PW 5), Sunil Mal (PW 6) and Ganesh Mal (PW 15) arrived at the place of occurrence. They removed the dead body of the deceased to the Krishnanagar Public Health Center. The doctor (PW 8) declared him dead. PW 12 conducted the post mortem examination over the dead body of the deceased on May 27, 1992 at 13.40 hours and prepared the post mortem report with reference to the Onda P.S. U.D. Case No.8/92. According to the opinion of the PW 12, the cause of death was head injuries which were ante mortem and homicidal in nature.

On May 28, 1992 PW 11 visited the place of occurrence and prepared rough sketch map of the place of occurrence with reference to Onda P.S. Case No.50/92 dated May 28, 1992 during his investigation.

A charge sheet bearing No.29/94 dated June 30, 1994 was submitted for commission of offence by the appellants punishable under Sections 302/34 I.P.C. Charge dated August 26, 1996 was framed against the appellants for commission of offence punishable under Sections 302/34 I.P.C. The appellants pleaded not guilty and claimed to be tried. After considering the oral evidence of seventeen (17) prosecution witnesses as also documentary evidences the impugned judgment, order of conviction and sentence were passed.

It is submitted by Mr. Mainak Bakshi, learned advocate appearing on behalf of the appellants that the FIR in this case came to be recorded later on after due deliberations and consultations. According to Mr. Bakshi, though there were two eyewitnesses, namely, PW 1 and PW 2, there was no explanation for lodging the FIR after two days. According to him, the appellants were falsely implicated for commission of offence of murder of the deceased in view of the fact that though according to the prosecution case, the names of the appellants was known to the PW 5 and PW 8 at the time of preparation of inquest examination over the dead body of the deceased, according to the preliminary investigation as incorporated in the above report the deceased was murdered by certain miscreants.

It is further submitted by Mr. Bakshi that there were contradictions in the evidence of the prosecution witnesses including that of the eyewitnesses of material dimension creating reasonable doubt about the trustworthiness of the evidence adduced by them.

It is further submitted by him that the eyewitnesses namely, PW 1 and PW 2 did not disclose the relevant facts to the I.O. (PW 11) in course of investigation of the case.

It has also been submitted by him that the seizure of alleged weapon of offence was not proved and those were not shown to the autopsy surgeon while adducing evidence in Court. It is ultimately submitted by him that the appellants were falsely implicated in the case. Reliance is place by Mr. Bakshi on the decisions of unreported judgment of the Hon''ble Supreme Court dated October 20, 2016 in the matter of Harbeer Singh vs. Sheeshpal & Ors. (in re:- Criminal Apeal No(s).1624-1625 of 2013) and Mobarak Sk. @ Mobarak Hossain & Ors. vs. The State of West Bengal, reported in 2011 CRI.L.J. 1677 in support of his above submissions.

The above submissions made on behalf of the appellants are vividly opposed by Mr. Ranabir Roy Chowdhury, learned advocate appearing for the State respondents. According to him, the commission of offence by the appellants was proved beyond any reasonable doubt on the basis of the evidence adduced by eyewitnesses PW 1 and PW 2.

According to him, the inquest examination over the dead body was conducted on the basis of information received from the medical officer of Krishnanagar Public Health Center before receiving the written complaint and registering the FIR in this case. None of the witnesses of the inquest report was eyewitness of the occurrence of murder of the deceased. As a result, the names of the appellants were not incorporated in the inquest report nor Section 174 Cr.P.C. provides for incorporation of the names of accused in the inquest report in each and every case irrespective of facts and circumstances involved in those cases.

It is further submitted by Mr. Roy Chowdhury that the eyewitness PW 1, i.e. the widow of the deceased was also assaulted by the appellants. She became shocked and ill immediately after returning home after witnessing the incident. The other eyewitness PW 2 was also assaulted by the appellants. As a result, he became senseless at the place of occurrence. According to him, there was delay in lodging the written complaint and registration of formal FIR in this case.

However, according to Mr. Roy Chowdhury the prosecution case was based on the evidence of aforesaid eyewitnesses, i.e. PW 1 and PW 2 corroborating with the evidence of medical expert and the post mortem report prepared by him.

Reliance is place by Mr. Roy Chowdhury on the decision of Satbir Singh & Ors. vs. State of Uttar Pradesh, reported in 2009 (13) SCC 790 in support of his above submissions.

We have heard the learned Counsels appearing for the respective parties as length and have considered the facts and circumstances of this appeal.

Regarding the first contention of the appellants we find that the date of occurrence of the incident was May 26, 1992. The inquest examination of dead body of the deceased held on May 27, 1992. Formal FIR was registered on May 28, 1992 on the basis of a written complaint of the widow of the deceased being PW 1. From the evidence of the PW 1 it further appears that in course of her cross-examination that on the next day of occurrence, she went to the hospital, i.e. Krishnanagar Public Health Center. It further appears that she went to the Onda Police Station on the very same day of going to the above hospital. Therefore, the above contradiction in the evidence of the PW 1 of material dimension creating doubt about the cause of delay in registering the FIR.

It is the settled principles of law that delay in lodging FIR itself cannot be a ground for quashing a criminal trial but in Kanhaiya Lal & Ors. vs. State of Rajasthan, reported in 2013 (5) SCC 655 it was observed by the Hon''ble Supreme Court that whether the delay in registering FIR creates a dent in the prosecution story has to be gathered by scrutinising the explanation offered for delay in the light of the facts and circumstances. The relevant portion of the above decision is quoted below:- "19. Thus, whether the delay creates a dent in the prosecution story and ushers in suspicion has to be gathered by scrutinising the explanation offered for the delay in the light of the totality of the facts and circumstances. Greater degree of care and caution is required on the part of the court to appreciate the evidence to satisfy itself relating to the explanation of the factum of delay. In Kilakkatha Rarambath Sas v. State of Kerala it has been observed (SCC p.557, para 20) that when an FIR has been lodged belatedly, an inference can rightly follow that the prosecution story may not be true but equally on the other side, if it is found that there is no delay in the recording of the FIR, it does not mean that the prosecution story stands immeasurably strengthened."

In view of the above settled principles of law, the aforesaid contradiction in the evidence of the one alleged eyewitness PW 1 creates doubt about the truthfulness of the prosecution case.

The above doubt further lends its support on scrutiny of evidence of PW 6 and silence of the PW 8 in disclosing the alleged participation of the appellants in commission of offence of murder of the deceased at the time of preliminary investigation during inquest examination on the dead body of the deceased. According to the evidence of PW 6, in his crossexamination, he had disclosed the names of the persons responsible for murder of the deceased to the medical officer (PW 8) of Krishnanagar Public Health Center. The PW 8 subscribed his signature as witness of the inquest report. But from the inquest report it appears that it was recorded therein that in the opinion of the witnesses certain miscreants murdered him and then fled away by throwing away the body in the water under a ditch beside the village.

In view of the peculiar facts and circumstances involved in this case the decision of Satbir Singh (supra) does not help the prosecution case.

The doubt about the truthfulness of the prosecution case became intense further when nothing surfaced from the another purported eyewitness PW 1 with regard to the above statement that PW 2 fell down on the ground and became senseless at the place of occurrence. More so, PW 5 and PW 6 were the persons who removed the deceased person to Krinshnanagar Public Health Center, but they deposed nothing in course of their evidence about the presence of PW 2 in a senseless condition at the place of occurrence. The PW 2 stated in his examination-in-chief that he became senseless being assaulted by the appellants at the place of occurrence. On the aforesaid ground it had further been stated by him that he could not tell the post occurrence happenings before the Court. From the evidence of the investigating officer (PW 11) we find that the PW 2 did not tell him that the deceased had been followed by him while going to take bath on the date of incident. Further, nor did he disclose before the investigating officer that PW 1 had been assaulted by the appellants at the time of making attempt to rescue her husband. In view of the above infirmities and contradictions in the evidence of prosecution witnesses, we are of the opinion that doubts have been created with regard to the truthfulness of the prosecution case.

Therefore, in view of the discussions and observations made hereinabove the impugned judgment, order of conviction and sentence are quashed and set aside.

This appeal is allowed and disposed of accordingly.

The appellants are directed to be set free expeditiously unless required in any other criminal case.

Let this judgment together with the Lower Court''s records be sent back to the learned Court below expeditiously.

Urgent Photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.