Manash Ghosh & Ors. vs State Of West Bengal

Bibek Chaudhuri, J

This is an appeal under Section 374(2) of the Code of Criminal Procedure filed by the convicts/appellants assailing the judgment and order of conviction and sentence dated 30th August, 2018 and 31st August, 2018 respectively passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Kandi, Murshidabad in Sessions Case No. 155 of 2011/Sessions Trial No. 09(03) of 2012 arising out of G.R. Case No. 246 of 2008 and Burwan Police Station Case No. 78 of 2008 convicting the appellants for committing offence under Section 304 Part - II of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for a term of seven years each and to pay fine of Rs. 50,000/- each, in default, to suffer further rigorous imprisonment for one year.

It is pertinent to mention that Burwan Police Station Case No. 78 of 2008 was registered on the basis of a written complaint submitted by one Subodh Ghosh on 20th April, 2008 stating, inter alia, that on the selfsame date at about 8.30 a.m., the accused persons/appellants were forcibly trying to drive a mini truck bearing No. WB-53/6807 through an under construction culvert causing damage to the road of the said culvert. The de facto complainant and his son, Milan Ghosh raised a voice of protest. At this, the accused persons became furious and abused the de facto complainant and his son. They further assaulted the son of the de facto complainant, Milan Ghosh by fists and blows and also with the help of 'lathi'. As a result of assault, Milan fell down on the ground senseless. He was taken to the hospital where the Medical Officer declared him dead.

On the basis of the said complaint, Police registered the above-mentioned case and took up investigation. After investigation, the Investigating Officer filed charge-sheet against the appellants under Section 304 Part - II of the Indian Penal Code.

As the offence was exclusively triable by the Court of Sessions, the case was transferred to the learned Court below for trial and disposal. The learned Trial Judge on perusal of the charge-sheet and other documents on record framed charge against the appellants under Section 302 of the Indian Penal Code. As the accused persons pleaded not guilty, trial of the case commenced.

During trial, prosecution examined as many as nine witnesses. Amongst them, P.W. 1 is the de facto complainant, P.W. 2, P.W. 3 and P.W. 4 are the local residents who rushed to the place of occurrence on hearing hue and cry and shouting and found the son of the de facto complainant named, Milan Ghosh in injured condition. P.W. 6 is a Police Officer who received the written complainant produced by Constable 296, Sahajahan Sk. to him at 6.05 p.m. and registered Burwan Police Station Case No. 78 of 2008. The case was entrusted to Sub Inspector, Anupam Das (P.W. 7) who already took up investigation of the case. P.W. 8, Rofikul Alam was declared hostile by the prosecution. P.W. 9, Dr. Subrata Roy is the Autopsy Surgeon who held post mortem examination over the dead body of Milan Ghosh.

As the first Court of appeal, I have thoroughly and independently perused the evidence on record. In the instant case, only two persons are material witnesses. First is the de facto complainant (P.W. 1) and the second is the Autopsy Surgeon (P.W. 9). P.W. 2, P.W. 3, and P.W. 4 did not see the incident. They came to the place of occurrence after the incident was over. From their evidences, it was gathered that Milan Ghosh was being taken to Kandi hospital by a rickshaw in senseless condition. Thus, they were not the eyewitnesses of the occurrence and they could not throw any light as to how Milan received injury over his person.

It is ascertained from the evidence of P.W. 1 that on 20th April, 2008 at about 8.30 p.m. he was going through the road. A culvert was being constructed over the said road. When he reached near the said culvert they found that the appellants were quarrelling with the labourers who were engaged in construction work. He tried to stop the dispute between the appellants and the said labourers but the accused persons started altercation with him. In the meantime, the son of the de facto complainant, Milan came to the spot. Seeing him, the appellants started assaulting him with fists and blows. As a result of assault, Milan fell down on the ground. Then also the appellants were assaulting the son of the de facto complainant. The de facto complainant raised alarm which attracted the witnesses, namely, P.W. 2, P.W. 3 and P.W. 4. Seeing them, the accused persons fled away. Milan was taken to hospital. The Medical officer examined him and declared him dead. Signature of P.W. 1 on the written complaint and on the inquest report were marked exhibits 1 and 2.

It transpires from the evidence of P.W. 9, Dr. Subrata Roy that he conducted post mortem examination over the dead body of Milan Ghosh in connection with Kandi Police Station UD Case No. 70 of 2008 dated 20th April, 2008. On examination, he found one abrasion mark over left forehead of the deceased ½' above left eye brow measuring 1' X ½'. No other external injury was noticed. On dissection, the Autopsy Surgeon found one small fracture at each end of hyoid bone of trachea.

Mr. Milan Mukherjee, learned Senior Counsel on behalf of the appellants submits at the outset that the charge was wrongly framed by the learned Trial Judge in the instant case and on the basis of such erroneous charge, conviction of the accused persons cannot sustain. In order to substantiate his argument, Mr. Mukherjee draws my attention to the formal FIR wherefrom it is ascertained that case was registered under Section 304 Part - II of the Indian Penal Code. There is absolutely no material that the accused persons committed murder of the son of the de facto complainant. The post mortem examination report does not suggest that the deceased received some injury on his person inflicted by the appellants which is sufficient in normal course of nature to cause death of the deceased. In the absence of such material, framing of charge by the learned Trial Judge under Section 302 of the Indian Penal Code is bad in law and erroneous. It is further submitted by Mr. Mukherjee that charge was framed against seven appellants without taking aid of Section 34 of the Indian Penal Code.

Another technical objection was raised by the learned senior counsel on behalf of the appellants that from the note endorsed by the Officer-in-Charge of Burwan Police Station, it is found that one Anupam Das, Sub Inspector of Police had already taken up investigation of the case. The prosecution is absolutely silent, how the said Anupam Das took up investigation of the case. It is not found from the record that the investigation was taken up prior to filing of the written complaint by P.W. 1 but the basis on which such investigation was taken up is conspicuously absent from the record.

In case of commencement of investigation, there must be some information to the police station under Section 154 of the Code of Criminal Procedure. If the investigation is started prior to lodging the complaint by the de facto complainant, then the complaint which was treated as FIR during trial of the case and all subsequent statements are hit by Section 162 of the Code of Criminal Procedure. Therefore, initiation of Burwan Police Station Case No.78 of 2008 is erroneous and the Court could safely held that the prosecution suppressed the earliest version of the incident.

Mr. Mukherjee, learned Senior Counsel on behalf of the appellants next draws my attention to the post mortem report.

According to the Autopsy Surgeon, the cause of death of the deceased, Milan Kr. Ghosh was due to myocardial infraction and neurogenic shock. Thus, it is absolutely clear that the cause of death of Milan Kr. Ghosh was not due to the infliction of fists and blows by the accused persons. In such event, the appellants were wrongly convicted and sentenced by the learned Court below.

It is also submitted by Mr. Mukherjee that inquest was done over the dead body of Milan Kr. Ghosh in presence of the de facto complainant. During inquest, the de facto complainant did not state the names of the accused persons as the assailants of his son. According to Mr. Mukherjee, inquest report is the first document prepared by the police officer in presence of the de facto complainant but he did not mention the names of the appellants to the police at the very first instance. This is an adverse circumstance, which should go against the prosecution.

Mrs. Anasuya Sinha, learned Counsel on behalf of State of West Bengal, on the other hand, very fairly and frankly submits that there was no material before the learned Court of Trial to frame charge against the accused persons under Section 302 of the Indian Penal Code. She admits that on the basis of an inconclusive opinion of the Autopsy Surgeon as to the cause of death of the victim, no charge under Section 302 of the Indian Penal Code can be framed. However, at the same time, it is submitted by her relying on the provisions of Sections 464 and 465 of the Code of Criminal Procedure that error, omission or irregularity in the proceedings held during trial cannot be a ground to alter the conviction and sentence passed by the trial Court if no prejudice is caused to the appellants. She refers to Section 465 of the Code of Criminal Procedure which runs: -

"465. Finding or sentence when reversible by reason of error, omission irregularity.

(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

Referring to the above provision, it is submitted by the learned Advocate for the respondent, State of West Bengal that even if there are irregularities in framing charge, a well-reasoned judgment is not open to be set aside in the absence of any ground showing failure of justice. Therefore, the learned Counsel for the State contends that the technical objection raised by the learned Advocate on behalf of the appellants has no leg to stand in view of the above provisions contained in the Code of Criminal Procedure.

It is further submitted by the learned Advocate for the State that from the materials on record, it is ascertained that Kandi Police Station U.D.Case was registered even before lodging of the complaint by the de facto complainant. Sub Inspector, Anupam Das proceeded to the spot after getting the information of an incident of quarrel and fighting causing death of a person prior to lodging the complaint and initiation of Burwan Police Station Case No.78 of 2008.

If on the basis of some information police goes to the spot for initial inquiry or investigation, such action of a Police Officer cannot be said to be commencement of investigation under Section 154 of the Code of Criminal Procedure.

However, it is submitted by Mrs. Sinha that according to the de facto complainant, the deceased was assaulted by the accused persons by fists and blows. However, the Autopsy Surgeon did not find any injury caused by fists and blows on the person of the deceased. The Autopsy Surgeon, however, found fracture of hyoid bone in the trachea of the deceased on dissection. In cross-examination, P.W.1 specifically stated that accused Narayan Ghosh throttled him and there was swelling on the throat of the son of the de facto complainant though the Medical Officer (P.W.8) did not specifically mention that hyoid bone was compressed and fractured as a result of throttling, accused Narayan Ghosh can be convicted for such specific act stated by the de facto complainant in his evidence on oath.

Having heard the learned Advocates for the parties and keeping aside the technical objections advanced by Mr. Mukherjee in his argument in view of the cogent and acceptable reasons placed by Mrs. Sinha, learned Advocate for the State, I am inclined to point out that the Autopsy Surgeon did not mention that the fractures of hyoid bone is sufficient to cause death of his son and in the absence of such evidence, Narayan Ghosh cannot be convicted under Section 304(ii) of the Indian Penal Code.

For the reasons stated above, I have no other alternative but to set aside the judgment and order of conviction passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Kandi, Murshidabad in Sessions Case No.155 of 2011/Sessions Trial No. 09(03) of 2012 in connection with of G.R. Case No.246 of 2008 arising out of Burwan Police Station Case No.78 of 2008 dated 20.04.2008.

Accordingly, the instant appeal is allowed.

The judgment and order of conviction and sentence passed against the appellants is set aside.

The appellants be discharged from their bail bonds.

Before I part with, I must record a note of appreciation that Mrs. Anasuya Sinha has conducted the case on behalf of the State respondent with all sincerity and devotion. She is absolutely honest in making her submission and without being swayed over the normal trend to defend the State at any cost even without having no material in the case.

Let a copy of this judgment be sent to the learned Legal Remembrancer to take note of the observation of this Court about the professional act conducted by Mrs. Anasuya Sinha being ably assisted by Mr. Pinak Kr. Mitra.

A copy of the judgment be sent to the learned Court below forthwith along with the lower court record.

The parties are at liberty to act on the server copy of this order.

Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.