Laltu Das vs The State of West Bengal

Shivakant Prasad, J.—1. Challenge in this appeal is against the judgment and order dated March 24, 2004 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Malda, in Sessions Trial Case No. 7(6) of 2003 (Sessions Case No. 154/2001) arising out of G.R. Case No. 1084/98 which refers to Harishchandrapur P.S. Case No. 73 dated 28.6.1998 convicting the appellant for the charge under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/- (one thousand), in default to suffer rigorous imprisonment for six months there under.

Brief facts leading to the instant appeal is that a construction of a bridge was going on at Pipla. Sk. Bhadu was employed as a mason alongwith Dhiren Rajbangshi, Laltu Das, Raban Das and many other persons as labourers in the construction of a bridge at Pipla. P.W.-3, the elder brother of accused, Laltu Das also worked there as a night guard. Sk. Bhadu and Dhiren Rajhangshi (P.W.-11) used to reside in a tent near the construction site. On 27.6.1998 the contractor came to the site and gave money to Sk. Bhadu for making payment to the labourers who would participate in the work of reinforced concrete on 28.6.1998. Payment to the labourers was made by Sk. Bhadu on 27.6.1998. Then Sk. Bhadu went to shop. Laltu Das, the accused, kept seated there. Dhiren Rajbangshi (P.W.-11) cooked meal, he took his meal and went to bed as he was a bit tired that day. At about 9 P.M. Raban came to that tent. Sk. Bhadu came to the tent and took alcohol and took his meal at the tent and left with Laltu Das for taking another round of alcohol. At about 2/2-30 a.m., Dhiren Rajbangshi (P.W.-11) heard a hue and cry and woke up from his bed. Having come out of the tent, he saw that some persons were severely beating Sk. Bhadu. Among them was the accused Laltu. Panic gripped him and he entered into a jute field to hide himself there and he came out of his hide out next day and saw the dead body of Sk. Bhadu lying at the place where he was beaten up by the accused and his companions last night but he did not disclose anything to anybody and went to meet the contractor in his house at Malda alongwith Raban Das (P.W.-3) and one Toton Das.

On 28.6.1998 at about 9 a.m. one Parijat Roy was proceeding to join his duty. He found a large gathering at the construction site of bridge at Pipla and having seen it, he had been to the place where he found a dead body of an unknown person lying with severe head injury. He lodged an FIR before Harishchandrapur P.S. as promptly as possible. Upon the FIR so lodged, police started Harishchandrapur P.S. Case No. 73 dated 28.6.1998 under Section 302 IPC and put the investigation into motion. During investigation, inquest was held over the dead body of the deceased at the P.O.; statements of the witnesses were recorded by the I.O.; some articles including the blood stained iron rod used in the crime was seized by the police from the P.O. The name of the accused transpired in the statements of P.W.-11, recorded by I.O. under Section 161 Cr.P.C. Pursuant thereto police conducted raid in the house of the accused, but he was not available. P.W.-11 also made statement to learned Judicial Magistrate under Section 164 Cr.P.C. on 04.7.1998. On 01.7.1998, the accused himself surrendered before the P.S. and he was arrested by the police. He confessed before the I.O. that it was he who committed murder of Sk. Bhadu. He also divulged before the police that the deceased assaulted him causing injury on his forehead who was sent to Harishchandrapur Block Primary Health Centre for his treatment. The accused was also sent to learned Magistrate for recording his confessional statement under Section 164 Cr.P.C. but he declined to make any confession. On completion of investigation, charge-sheet under Section 302 IPC was submitted against the accused.

Learned SDJM after taking cognizance of the offence on the charge-sheet under Section 302 IPC committed the case to the Court of learned Sessions Judge, Malda. The case was received on transfer from the Court of learned Sessions Judge for trial and disposal, the trial Court framed charge under Section 302 IPC against the accused appellant which was read over and explained in Bengali to him to which he pleaded not guilty and claimed to be tried.

Trial Court examined as many as thirteen witnesses produced by the prosecution. Inquest report Ext. 1; seizure list Ext. 2; P.M. Report Ext. 3; FIR Ext. 4; Formal FIR Ext. 5; Sketch map Ext. 6 and Dead body Challan as Ext. 7, detailed in the list of documents kept in the record.

After prosecution evidence was closed, the accused was examined under Section 313 Cr.P.C. to which he declined to adduce defence witnesses. The defence is one of denial of charge levelled by the prosecution which emerges from the trend of cross-examination of prosecution witnesses and from the answers to questions given by the accused appellant under Section 313 Cr.P.C.

Learned Trial Judge on appraisal of the evidence of P.W.-1, P.W.-2, P.W.-4, P.W.-5, P.W.-6, P.W.-7 and P.W.-11 held that Sk. Bhadu was murdered at the site of bridge construction near Pipla village. P.W.-1 a labourer who worked with Sk. Bhadu at the said construction site deposed that Sk. Bhadu their mistri was found far at the site of construction, that police came and seized blood stained stones, one torch, one broken glass chimney of a table lamp and lower portion of table lamp and another blood-stained iron rod at construction site. P.W.-2 another labourer who also worked with Sk. Bhadu deposed that he reached at the place of occurrence i.e. the site of bridge construction and saw the dead body of Sk. Bhadu. P.W.-3 Raban Das, brother of the accused was declared hostile by the prosecution. P.W.-4 and P.W.-7 are the contractors under whom Sk. Bhadu and all the labourers worked at the construction of bridge at Pipla who also testified the fact of death of Sk. Bhadu and identified his dead body at the police station who are witnesses to the inquest report. P.W.-5, son and P.W.-6 wife of the deceased have deposed that deceased Sk. Bhadu was murdered at the site of bridge construction. According to P.W.-8, the Autopsy Surgeon who performed the Post Mortem examination over the dead boy of Sk. Bhadu opined that the cause of death was ante mortem and homicidal in nature as per the injury inflicted on his head. Based on the above evidence of the aforesaid witnesses, the learned Judge held that the evidence unerringly establish one and one thing only that Sk. Bhadu was murdered at the site of bridge construction at Pipla by some miscreants or others and there is nothing to entertain any second thought in this regard but the question remained for to be answered as to who had perpetrated the crime of murder.

In the second limb of his discussion as to the identity of the assailant the learned Judge relying on the evidence of P.W.-11 and his statement made before the Judicial Magistrate under Section 164 Cr.P.C. held that it was the appellant who has inflicted injury on the head of the deceased causing his ultimate death with the finding that though none of the witnesses had divulged anything implicating the appellant in the murder of Sk. Bhadu but Dhiren Rajbangshi, P.W.-11 deposed in clear term that he saw the accused appellant to commit murder of Sk. Bhadu.

It is submitted on behalf of the appellant that the learned Judge held the accused appellant guilty of the charge under Section 302 IPC without giving benefit of doubt, although question as to identify of the accused appellant is doubtful because the evidence of P.W.-11 reflects that at about 9 P.M. on that night, Sk. Bhadu went outside to drink alcohol, and he came back at 11/12 P.M. to the tent and at about 1 A.M. he heard an uproar outside their tent and came out of his tent and saw Laltu and others assaulting Sk. Bhadu but entered into the jute field out of panic and saw the dead body of Sk. Bhadu next day in the morning at the same place where he was beaten. It would appear from the evidence of P.W.-11 that he did not state to the Judicial Magistrate in his statement under Section 164 Cr.P.C. at the earliest point out time that he saw Laltu and other assaulting Sk. Bhadu. He has also not stated before the Magistrate that he entered into the jute field to conceal himself having seen the accused person to assault Sk. Bhadu.

It is evident from the evidence of Investigating Officer that the accused Laltu had stated to him that deceased assaulted him and finding severe swelling on his forehead, he sent him to Harischandrapur BPHC for medical treatment. The accused also gave the same statement before the doctor of BPHC that he was assaulted by the deceased Sk. Bhadu by a glass bottle.

In the examination-in-chief P.W.-11 has stated that having heard hue and cry he came out from his temporary tent and saw Laltu along with others assaulting Sk. Bhadu severely but he has stated before the Magistrate that he had seen three other persons leave the place but could not identify them except identifying Laltu on the spot. Laltu has stated that he was assaulted by Sk. Bhadu and he was shifted to hospital for treatment though no effort was made for production of the injury report to secure the explanation from the side of the prosecution the reason for assault. If this evidence is taken into consideration, it is obvious that it was a case of mis-fight out of altercation due to drunken condition of the deceased and the accused.

On giving an anxious consideration to the facts and circumstances of the case we do not find any mens rea or the intention to kill Sk. Bhadu. The rod used for the offence was seized by the I.O. but admittedly was not sent for forensic examination to find hand print on the rod by the prosecution agency as to whether it was Laltu or any other persons giving blow on the head of Sk. Bhadu because during examination under Section 313 Cr.P.C. accused appellant stated that he has not beaten Sk. Bhadu. Thus, obviously finding of the learned Judge that P.W.-11 uttered the name of Laltu having perpetrated the crime is not a sound reasoning in as much as the identity of the accused appellant is in doubt in view of the evidence of P.W.-11 who has clearly stated that there were three other miscreants in the scene of crime and further that he has not disclosed this fact to the Magistrate having seen Laltu and other assaulting Sk. Bhadu. Statement under Section 164 Cr.P.C. was taken at the earliest point of time. So there is a serious improvement in his deposition while he says that he saw Laltu assaulting the deceased, that too, in the dark night. Even for the sake of consideration and taking into the deposition of I.O. it can be seen that Laltu was assaulted by Sk. Bhadu as per his statement made to the I.O. but this piece of evidence of I.O. cannot be relied inasmuch as there was no effort made by the prosecution to produce the injury report of Laltu showing his treatment at the said BPHC. Even if those are taken into consideration, by no stretch of imagination it can be held that intention to kill Sk. Bhadu was writ large.

It would be profitable to reproduce the statement made to the Magistrate thus-

"I got up from sleep having heard hullah. Came out of my house and saw that Bhadu was lying dead about 10 cubits away. Three persons were found to go away. Among them was Laltu whom I knew."

The aforesaid statement is not indicative of a proof that it was Laltu who had murdered Sk. Bhadu because P.W.-11 only saw the dead body of Sk. Bhadu lying and he has not seen Laltu assaulting Sk. Bhadu. Therefore, the findings of the learned Trial Judge that P.W.-11 gave statement to the Magistrate that he saw accused Laltu committing murdered of Sk. Bhadu is undoubtedly a perverse finding on the face of record. Credence cannot be given to the evidence of P.W.-11 because he had admitted in his cross-examination by the defence that he has not stated to the Recording Magistrate that he saw Laltu and other accused persons assaulting Sk. Bhadu at that time. It shows a material contradiction in the version of Dhiren Rajbangshi, P.W.-11, ergo, the accused appellant ought to have been given benefit of reasonable doubt. On the contrary, conviction of the appellant has been based only upon the version of the solitary witness P.W.-11 but the learned Judge appears to be bent upon to convict the appellant adhering to the principle that it was his duty to punish him without appraising the evidence in its right perspective bearing in mind the observation of Hon''ble Apex Court in 2003 AIR SCW 3984, which reads thus-

"Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and commonsense............................ A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. Doubt should be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite rather than truth."

In our considered view, there appears a material improvement in his version before the trial Court when P.W.-11 has claimed to have seen Laltu assaulting Sk. Bhadu in the light of a vehicle while he was sitting on the heap of stone and blow of iron rod was given on his head. It is curious enough to note that what prevented P.W.11 not making statement before the Magistrate having seen Laltu assaulting Sk. Bhadu rather he stated that he saw dead body of Sk. Bhadu. Therefore, the evidence of P.W.-11 is not trustworthy for the purpose of convicting the appellant on the solitary evidence inasmuch as he has resiled from his earlier statement by making improved statement to this effect that it was only Laltu who had perpetrated crime of murder of Sk. Bhadu. The learned Judge has observed injury on the forehead of the accused and the I.O. sent him to the hospital for treatment of the said injury but without production of injury report in the evidence. It was a failure on the part of the learned Trial Court to peruse the injury report in respect of the accused for proper explanation regarding the mark of injury on the head of the accused and then to form opinion. From the statement of the accused that he was assaulted by Sk. Bhadu, his statement being inculpatory in nature coupled with the mark of injury on the forehead lend some positive assurance to the learned Judge to find that it is the accused person who committed murder of Sk. Bhadu on that fateful night but that piece of evidence of the I.O. cannot be construed as the proof, ergo, such observation is a wishful thinking on the part of the learned Sessions Judge. We must not lost sight of the fact that evidence discloses that Sk. Bhadu was drunk before the incident had taken place on that fateful night. P.W.-11 has stated that he had seen alleged incident in the late hours of night between 27.6.1998 and 28.6.1998 but he did not disclose anything to anybody on the next day of incident and also thereafter, till 30.6.1998, that is, the date on which he was examined by I.O.

Observation of the learned Trial Judge is that seeing the diabolical torture upon the deceased, P.W.-11 entered into the jute field out of panic. Such observation is beyond the record showing that P.W.-11 simply saw that Bhadu was lying dead when he came out from his tent. Obviously, he had not seen the appellant or any other persons having committed diabolical torture on Sk. Bhadu. If we accept the version of the I.O. that appellant was assaulted by Sk. Bhadu, then a case of misfight can only be viewed but it cannot be considered as an intention to kill Bhadu as required for charge under Section 302 IPC.

In view of what has been discussed above we conclude that the ratio of decision in case of 2003 AIR SCW 3984 is not well nigh within the facts and circumstances of the case, as there is a reasonable doubt on the question of identity of the accused appellant which is a serious doubt and it would be a safe rule to acquit the accused appellant.

We accordingly allow the appeal.

As a result, the accused appellant is acquitted of the charge under Section 302 IPC and be set at liberty at once, if not wanted in any other case.

Let the Lower Court Record together with a copy of this Judgment be sent down to the learned Trial Court forthwith.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

Rajiv Sharma, J.—I agree.