Dipak Sarkar Mondal vs State Of West Bengal & Ors.

Jay Sengupta, J.

This appeal is directed against the judgment and order dated 22nd December 2005 passed by the learned Additional Sessions Judge, 1st Fast Track

Court, Cooch Behar in Session Trial No. 02 (4) 2003: Session Case No. 198 / 2000, thereby finding the accused Dipak Sarkar @ Mondal guilty for the

commission of offences punishable under Sections 302 and 448 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay

a fine of Rs. 1000/- only, in default to suffer further imprisonment for three months for the offence punishable under Section 302 for the Penal Code

and to suffer simple imprisonment for three months for the offence punishable under Section 448 of the Penal Code, both sentences having to run

concurrently, while acquitting the co-accused Chitta Biswas and Bijoy Mondal.

On 25th March 1997 at about 21.05 hours the informant Sunil Lal Dey (PW10) lodged a First Information Report being Kotwali Police Station Case

No 84/97 under sections 307, 326, 448, 34 (and subsequently added section 302) of the Penal Code against the appellant, one Rintu Saha and others.

He alleged that on 25th March 1997 at about 3 pm about 15/16 assailants armed with deadly weapons came from Birpara Kaisai Patty and assaulted

one Tapan Dey after barging into his uncle’s house. They hit Tapan on his abdomen and right hand with sharp cutting weapons and he sustained

severe injuries. He was taken to hospital with bleeding injuries. The locals of the village identified two assailants namely, Dipak Sarkar and Rintu

Saha.

Investigation commenced. An inquest was done by the Investigating Officer (PW13) on 26th March 1997 at about 11.05 hours in the hospital. PW

9 conducted the post mortem examination of the dead body on 26th March 1997 at about 12.15 pm and found that the death was due to the effects of

haemorrhage and shock caused by the ante-mortem injuries sustained. After completion of investigation, a charge sheet was submitted against the

three accused including the present appellant under sections 448, 302 read with Section 34 of the Penal Code. Charges were framed against the

appellant and those two others namely, Chitta Biswas and Bijoy Mondal under sections 448, 302 read with Section 34 of the Penal Code on 24th April

2003.

The prosecution examined as many as 19 witnesses to establish its case. From the trend of cross-examination of the prosecution witnesses as well

as from the examination the accused under Section 313 of the Code, the defence case appears to be the denial of the prosecution case.

From a careful perusal of the evidence-on-record, it is found that PW1 was a neighbour of the victim and a Panchayat member from the CPI(M)

party. He was a post-occurrence witness. He heard someone say that the victim Tapan Dey had been murdered, went to the spot and saw the

appellant lying in injured condition near or about the place of occurrence. He found the victim fighting for life at the hospital. In the cross, he admitted

that he did not state to the police about the appellant.

PW2 was a brother of the victim / deceased. He heard a hue and cry that the victim and one Manik were being murdered and he rushed near his

house. He saw 10 / 15 persons coming out of the house of his uncle Ajit Dey (PW11) and then fleeing away. He saw the victim lying injured in the

courtyard of PW11’s house. The victim was holding the appellant with one hand and telling them not to release or excuse him. Manik was inside

the house. They took the victim with bleeding injuries to the hospital. Although PW2 admitted in his cross that he did not tell the police the fact of the

victim holding the appellant and making statements, yet he denied that these were not true. The appellant was a supporter of the Congress party.

PWs 3, 7 and 8 were only witnesses to the inquest. PW13 was the police officer who had held inquest on the dead body of the victim.

PW4 was a brother of the victim. He was an injured eye-witness who turned hostile only so far as the involvement of some other accused was

concerned. He deposed that the appellant and one Dulal Mondal assaulted him in the house of PW11. When the victim came to rescue him, they

started assaulting him too. About 14 / 15 persons were present. The assailants came with sharp cutting weapons and hit the victim on his abdomen

and right hand. He could not recollect the names of the other assailants. In the cross, he reiterated that he stated to the police that the appellant and

the said Dulal Mondal were among the persons who assaulted his brother.

PW5 was the mother of the victim / deceased. She was a pre and post occurrence witness. Hearing a hue and cry she went and saw that his son

Manik was chased by a group of armed assailants and he took shelter in PW11’s house. When the armed group started assaulting him, his brother

the victim tried to rescue him. Then, the miscreants started assaulting the victim inside a room. Tapan caught hold of the appellant, one of the

assailants, saying that he had apprehended one. She could not identify the other assailants as their faces were covered with ‘abir’. In the cross

examination, she stated that she had told the police about the victim catching hold of the appellant.

PW6 was an immediate neighbour of PW11. She was also a pre and post occurrence witness to the murderous assault on the victim. When Manik

was attacked by the armed gang, she tried to save him. The victim too tried to save his brother. Suddenly, he was seen lying with bleeding injuries.

The victim caught hold of the appellant and told her that they should not let him go. She could not identify the other miscreants. In her cross, she

admitted that she did not tell the police about the victim catching hold of the appellant.

PW9 was the post-mortem doctor. He found 6 major injuries on the dead body of the victim. He opined that the death was caused by

haemmorhage and shock due to the said injuries, which were ante-mortem in nature. The injuries were sufficient to cause death. PW19 was a

colleague of the post mortem doctor.

PW10, a neighbour of the victim and a Gram Panchayat member belonging to the CPI(M) party was the de-facto complainant. He heard about

the incident from others and lodged the first information report.

PW11 was the uncle of the victim and the owner of the house in which the assault took place on the victim Tapan. When he was in the lavatory

he heard the noise that some persons were assaulting Manik. The victim came there. After coming out, PW11 found the victim lying in a pool of

blood. He also saw that the appellant was being beaten up by other people for being a member of the group of assailants. He also saw some others

fleeing from the spot. He stated that he had told the police about the retaliatory assault on the appellant.

PW12 was tendered by the prosecution. PW14 was the constable who carried the dead body to the morgue for post-mortem. PW15 was the

police officer who recorded the first information report.

PW16 was the first investigating officer. He examined available witnesses and send the prayer for adding section 302 of the Penal Code to the

case. In the cross, he admitted that PW4 did not specifically take the name of the appellant as an assailant. PW5 also did not state that the victim had

caught hold of the appellant. PW11 also did not tell him that he saw that some others were assaulting the appellant. PW17 was the second

investigating officer who examined some witnesses already examined, held raids to arrest the suspects and collected the post mortem report. PW18

was the final investigating officer who submitted the charge sheet. Strangely and in a pathetic display of callousness he did not make further inquiry

into the matter or incorporate the names of some other accused in the charge sheet as the father’s names of some of the accused were not

mentioned in the statements of witnesses.

Mr. P. S. Bhattacharrya, learned Advocate appearing on behalf of the appellant first questioned the source of information of PW1 in lodging a first

information report. According to him, the first information report was actually withheld. He submitted that even during inquest, none could be

specifically named as an assailant. According to him, if at all, the only material available against the appellant is that the victim caught hold of the

appellant and said “Do not leave himâ€. PW 1 deposed for the first time in Court that the appellant was lying at the spot. PW 2 and 6 stated for the

first time in Court that the victim had caught hold of the appellant. On this issue, the victim’s mother PW5 was contradicted by the Investigating

Officer. PW11’s evidence that the appellant was manhandled at the spot was not borne out by the medical evidence. The prime eye-witness PW4

had turned hostile. He did not state that the victim had caught hold of the appellant. PW10 gave out an inkling of political rivalry. No weapon was

recovered. Moreover, there was no pin pointed evidence that the appellant gave any fatal blow. He submitted that if at all, the appellant ought to have

been convicted under Section 326 of the Penal Code.

Mr. Arun Kumar Maity, the learned Additional Public Prosecutor submitted that the appellant was present at that spot, participated in the crime

and he himself assaulted. Although hostile, PW4 corroborated the other pre-post occurrence witnesses substantially. The post-mortem doctor found

six serious injuries on the dead body. It is not always necessary to point out which accused inflicted which injury. In fact, no suggestion was given by

the defence that the appellant did not inflict any blow. The appellant did not offer any explanation about his presence at the spot. Nonseizure of

weapon is not fatal to the prosecution case. In this case medical evidence clearly corroborated the ocular version.

I have heard the submissions of the learned Advocates of both the parties and gone through the evidence and other materials-on-record.

First, no first information seems to have been actually withheld. PW10 who was a Gram Panchayet member received information about the

incident of assault and intimated the police. He was not an eye-witness to the incident. That is why there were some errors in naming the actual

accused. This does not evoke any suspicion whatsoever. The purpose of lodging of First Information Report is only to set the criminal law in motion in

respect of a cognizable offence. PW10 did just that. The de-facto doctrine, a settled principle of criminal law, provides that anyone who comes to

know about the commission of cognizable offence can set the law in motion by lodging a First Information Report or a complaint. Thereafter,

investigation commenced and the real truth came to light. A charge sheet was filed against the miscreants whose names transpired from the

statements of the witnesses.

Although the names of the accused were not specifically taken at the stage of inquest, the bare facts were clearly laid down and the number of

accused involved was mentioned. It was clearly mentioned there that on preliminary investigation it was learnt from PW8 that after Holi Celebration,

while the victim entered his uncle’s house, he saw his brother being beaten up with lathi by about 15 assailants. The victim tried to rescue his

brother, but the assailants stabbed him with a dagger. Sometime later, the victim succumbed to his injuries. It may be pertinent to mention here that

none of the three witnesses to the inquest- PWs 3, 7 and 8 was an eye-witness to the occurrence. In any event, not naming of an accused in the

inquest report need not necessarily be fatal to the prosecution case.

The appellant’s contention that he was falsely implicated due to political rivalry does not have any evidentiary basis. Had it been so, the

appellant would have been specifically named in the First Information Report and the Inquest Report.

The presence of the appellant at the place of occurrence is borne out from the evidence of PWs1, 2 and 6. But, PW1 stated for the first time that

the appellant was lying there in injured condition, PWs 2, 6 stated for the first time that they had seen the victim catching hold of the appellant and

making statements that the appellant should not be released or excused. A similar evidence given by the victim’s mother PW5 was contradicted

by the Investigating Officer PW16. What a witness states for the first time in Court is usually taken with a pinch of salt. But, every fact and every

detail that a witness might know and states for the first time in Court need not be disbelieved, especially when it is in the nature of portrayal of better

details of the facts and is coherent with the overall scheme of adducing of evidence.

That the victim had caught hold of the appellant is indirectly supported by PWs 4 and 11. PW4 stated that on the date of occurrence the appellant

was present at the spot. PW11 deposed that the appellant was being beaten up others for being one of the assailants. Although PW1 stated that he

had seen the appellant in injured condition at the place of occurrence, an injury report or any treatment document of the appellant was not exhibited in

this case. But, the evidence regarding injury of the appellant finds clear support from a careful perusal of the records, which show that immediately

after the incident the appellant was arrested in an injured condition and was admitted at the Alipurduar SD Hospital on 25th March, 1997 and he was

discharged from there on 31st March, 1997. This fact is borne out from the order No. 2 dated 1st April, 1997 passed by the learned Sub-Divisional

Judicial Magistrate, Sadar, Cooch Behar. The factum of injury suffered by the appellant is further supported by a Discharge Certificate kept in the

records and the same indicates a treatment for a cut injury on the face of the appellant.

The appellant, however, did not provide any explanation for his presence at the place of occurrence in his examination under Section 313 of the

Code.

The victim’s utterings immediately after the assault on him and while holding the appellant with one hand, “Don’t release him†clearly

amounts to a verbal dying declaration as contemplated under section 32 of the Evidence Act.

Moreover, PW4 clearly supported the prosecution case so far as the guilt of the present appellant is concerned. He was an injured eye-witness.

He turned hostile only as regards the other accused whom he failed to name. So far as the present appellant is concerned, he clearly delineated his

role and gave an eye-witness account of the appellant’s assault on the victim.

The non-seizure of a weapon in the present case, especially when one of the assailants, the appellant was caught red handed, is neither improbable

nor fatal to the prosecution case. In this case, the investigation started much later. The weapon/s used could have either been taken by the other

assailants while fleeing away or could have just got misplaced.

PW9, the post-mortem doctor, indicated 6 deadly injuries on the dead body and held that those injuries were sufficient to cause death. Thus, he did

not identify a single blow as the fatal one. From the evidence discussed above, it is clear that the appellant was seen assaulting the victim with a

deadly weapon. The victim / deceased made a verbal dying declaration. In these circumstances, there is no harm if it cannot be fixed which one of the

accused caused which injury.

The contention of the learned Advocate of the appellant that if at all, the appellant ought to have been convicted under Section 326 of the Penal

Code and not Section 302 does not at all appear convincing. If one is so unsure about the appellant’s participation in the crime, then why convict

him at all. The blows given by the assailants on the victim were sufficient to cause his death and in fact, caused his death. The present appellant was

found to be the prime perpetrator of this crime. Therefore, if the conviction is to be had, it will be under Section 302 of the Penal Code only.

The evidence and other materials-on-record, without a doubt, indicate that the present appellant was responsible for murdering the victim.

In view of the above discussions, I hold that the prosecution case has been proved beyond any reasonable doubt as against the present appellant

and hence, the appeal is dismissed and the conviction and sentence are upheld.

A copy of the judgment along us the Lower Court records may be sent down to the learned Trial Court forthwith for information and necessary

action.

Urgent Photostat certified copies of this judgment may be delivered to the learned Advocate for the parties, if applied for, upon compliance of all

formalities.