Shew Kumar Shaw vs State of West Bengal

Debiprasad Sengupta, J.

1 .This appeal is directed against the judgment and order of conviction and sentence dated 28.04.1989 passed by the learned Additional Sessions Judge, 9th Court, Alipore in Sessions Trial No. 8(5) 88 thereby convicting the accused appellant Shew Kumar Shaw u/s 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life.

In the present case, five persons were charged with the offence u/s 302/34 of the Indian Penal Code. The other four accused persons were acquitted of the said charge and the present appellant was only convicted u/s 302 of the Indian Penal Code.

To prove its case, the prosecution examined as many as 15 witnesses including the Police Officer and the Medical Officer and none was examined on behalf of the defence. The specific defence of the accused appellant was of innocence and false implication.

On the basis of an information lodged by P.W. 1 Bharat Lal Kahar, a case was registered with Titagarh Police Station alleging commission of offence u/s 302 IPC. In the First Information Report, it was alleged by the informant (P.W. 1), the father of the deceased, that on the date of incident at 11.30 P.M. while he was sleeping, his son Seoji Kahar (P.W. 2) rushed to his room and shouted that some people were assaulting Nanda Kishore (the victim), who was his another son. When P.W. 1 came out of his room, he found that Nanda Kishore was lying in pool of blood. P.W. 1 took Nanda Kishore on a rickshaw van for going to the hospital and on the way to the hospital he informed the incident to the police. It is further stated in the FIR that on being asked by the doctor in the hospital Nanda Kishore told that accused Shew Kumar Shaw and his brother Dina Shaw had assaulted him with a "bhojali", but he did not say anything as to why he was assaulted. It was also in the FIR that such incident of assault was seen by many persons.

The informant, P.W. 1, stated in his evidence that on 19.02.1987 at about 11.30 P.M. when he was sitting in the varandah, his younger son (P.W. 2) came to him and said that Nanda Kishore was being assaulted by some persons. He further deposed that when he came out of his room he found Dino, Baijnath, Sankar, Bhola and Shew Kumar Shaw were fleeing away with arms from that place. This witness went to Titagarh Police Station straight from the place while Nanda Kishore was lying with bleeding injuries. This witness further stated that victim Nanda Kishore on being asked by the doctor and the Police Officer told that Dina and Shew Kumar Shaw had assaulted him.

P.W. 2, who is another son of P.W. 1, stated in his evidence that on 19.02.1987 at about 11.30 P. M. while he was sitting in his house, he heard shouts of his elder brother and came out from his house. He further deposed that he found all the five accused persons assaulting Nanda Kishore under a tree. He narrated the incident to P.W. 1 and after that he became unconscious. In cross-examination this witness stated that he saw the accused persons assaulting Nanda Kishore in front of their room. He further deposed that the incident took place in front of a Shib Mandir and to reach the Shib Mandir one has to cross a more (crossing) and after crossing that one has to go left side to reach the Shib Mandir. He also stated that many people sleep in that Shib Mandir and the distance between the Shib Mandir and their house is 30 cubits.

P.W. 3, Kishore Kahar, was the brother of P.W. 1 and he heard from P.W. 1 that Nanda Kishore was murdered. He further stated that he found Nanda Kishore talking with the Police Officer in his presence and on being asked by the Police Officer Nanda Kishore told that accused Dina and Shew Kumar Shaw had assaulted him. This witness was not examined by the police and he did not state to the police that he found Nanda Kishore making statement before the police.

P.W. 4 stated that he did not know as to how Nanda Kishore died. P.W. 5 also stated that he did not see anybody to kill Nanda Kishore.

P.W. 6 is the Medical Officer of R.G. Kar Medical College and he countersigned the death certificate.

P.W. 7, Lakshmi Dasi is the wife of P.W. 1 and she stated that she followed Nanda Kishore to the hospital and in the hospital Nanda Kishore told the names of accused, Dina and Shew Kumar Shaw as his assailants. This witness was not examined by the police and she stated in cross-examination that she did not state before the police that Nanda Kishore told the names of Dina and Shew Kumar Shaw as his assailants.

P.W. 8, Hiralal Shaw had no knowledge about the death of the victim Nanda Kishore. P.W. 9 was the rickshaw puller, who took Nanda Kishore to B. N. Bose Hospital by his rickshaw and he could not say anything more.

P.W. 10 was the A.S.I. of Police and he recorded the formal FIR. P.W. 11, S.I. of Police, held inquest over the deadbody of the victim.

P.W. 12 was the Medical Officer, who examined Nanda Kishore at B. N. Bose Hospital and found multiple incised injuries on his body.

P.W. 13 was the S.I. of Police, who submitted charge sheet against the accused persons. P.W. 14 is also a Medical Officer and on 20.2.1987 at 12 midnight he examined the victim Nanda Kishore who was conscious and who told him that he was assaulted by Dina Shaw and Shew Kumar Shaw. This witness further stated that in Exhibit - 5/1 (the dying statement), which was recorded by him, he found that it was written and the name of Dina Shaw was interpolated without his signature.

P.W. 15 was the Investigating Officer of the case, who visited the place of occurrence, had been to the hospital, collected medical reports and examined witnesses.

Mr. Dastoor, learned Counsel appearing on behalf of the appellant submits that it is in the evidence of the prosecution witnesses that number of persons assembled at the place of occurrence, but surprisingly enough none was examined by the Investigating Officer of the case. It is further argued by the learned Advocate of the appellant that P.W. 2, who claims himself to be an eyewitness to the incident of assault, cannot be an eyewitness of the assault. The presence of P.W. 2 at the place of occurrence is doubtful. P.W. 2 stated in his evidence that he saw the accused appellant along with others assaulting the victim, Nanda Kishore, but the names of the assailants were not disclosed to P.W. 1 when he informed P.W. 1 about the incident. In the First Information Report also it was not stated by P.W. 1 that P.W. 2 rushed to his room and told him that the appellant along with other accused persons were assaulting the victim, Nanda Kishore.

It is further argued by Mr. Dastoor, learned Advocate of the appellant that had the P.W. 2 seen the incident of assault by the accused appellant and other witnesses, he would have certainly disclosed the names of the assailants to P.W. 1. Apart from this, although P.W. 2 was examined by the police on the following day i.e. on 20.2.1987, he never disclosed to the police that he had seen the incident of assault in his own eyes. He did not disclose the names of the assailants to the Investigating Officer when he was examined. From the evidence of P.W. 15 we find that in cross-examination P.W. 15 stated that P.W. 2 never stated to him that he himself saw the incident of assault on Nanda Kishore by the accused persons. In such circumstances, it is submitted by the learned Advocate of the appellant that the evidence of P.W. 2 does not inspire confidence and he cannot be regarded as an eyewitness to the incident of assault.

It is submitted by the learned Advocate of the appellant that although P.W. 3 stated in his evidence that he had seen Nanda Kishore talking with the police in his presence, but P.W. 1 has not stated anything about the presence of P.W. 3. P.W.3 was not examined by the police and he stated in cross-examination that he did not tell the police that he found Nanda Kishore making statement before the police. Mr. Dastoor, learned Advocate further submits that in the present case the doctor, who held post mortem examination over the deadbody, was not examined. No weapon of assault was recovered by the police during investigation.

It is further pointed out by the learned Advocate of the appellant that although P.W. 1 stated in his evidence that he found four persons, including the present appellant, fleeing away from the place of occurrence with the weapons in their hands, he did not disclose it in the First Information Report. As such, the evidence of P.W. 1 does not inspire confidence and this witness should never be believed.

Referring to the First Information Report, it is submitted by Mr. Dastoor, learned Advocate that although the case was registered on 20.2.1987 at 24.45 Hrs, the date of despatch of FIR from the police station was shown as 20.2.1985 at 8.00 Hrs, but surprisingly enough it is stated by the P.W. 1 that he lodged the complaint on the following day at 10.00 A.M. This FIR reached the learned Magistrate on 23.2.1987. These anomalies in the FIR and the delayed despatch of the FIR, which reached the Magistrate after three days, cast a serious doubt on the prosecution case. It is argued by Mr. Dastoor that it is incumbent upon the police, who records the FIR to send a copy of the FIR to the Magistrate immediately without any loss of time. It is, therefore, clear that the FIR itself was a belated document and there was sufficient time for the prosecution to deliberate and prepare a false case.

The next argument advanced by the learned Advocate of the appellant is that the circumstances appearing in the evidence against the accused appellant were not put to the accused when he was examined u/s 313 of the Code of Criminal Procedure. Referring to the examination of the accused u/s 313 Cr.P.C., the learned Advocate submits that only one question was formulated, which was also defective, and was put to the accused in 313 examination. The question was in the following manner:

Q.1. P.W. Seoji Kahar and witness No. 14 Ganjai (?) Saha stated that on 19.7.87 at 11-30 p.m. you along with other accused injured Nanda Kishore Kahar. Later on he died at R.G. Kar hospital. Have you got anything to say ? Ans. I am innocent. 22. Referring to the aforesaid 313 examination it is submitted by the learned Advocate that P.W. 14 never stated that he saw the appellant along with other accused persons assaulting Nanda Kishore. The other circumstances appearing in the evidence were not at all put to the accused in his examination u/s 313 Cr. P.C.

It is the contention of the learned Advocate that since the circumstances not put to the appellant in his examination u/s 313 Cr. P.C., the same have to be completely excluded from consideration and since no question was put to the accused appellant with regard to the other circumstances appearing in the evidence, it has to be completely excluded from consideration. In support of his contention, Mr. Dastoor relies upon a judgment of the Hon''ble Apex Court reported in Sharad Birdhichand Sarda Vs. State of Maharashtra, . The learned Advocate refers to paragraphs 143, 144 and 145 of the said judgment, which is quoted below:

Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11,12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement u/s 313 of the Criminal Procedure Code, 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 wherein the case of Hate Singh Bhagat Singh v. State of Madhya Pradesh this Court held that any circumstance in respect of which an accused was not examined u/s 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination u/s 342 of the old Code (corresponding to Section 313 of the Criminal Procedure Code, 1973), the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra this Court held thus : [SCC para 5, p. 440 : SCC (Cri) p. 58]

The fact that the appellant was said to be absconding, not having been put to him u/s 342, Criminal Procedure Code, could not be used against him.

To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat where the following observations were made : [SCC (Cri) p. 653, para 3]

In the first place, he stated that on the personal search of the appellant a chedi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement u/s 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant....

It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination u/s 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration.

The learned Advocate appearing for the State also admits that the examination of the accused u/s 313 Cr. P.C. was defective one and the circumstances appearing in the evidence against the accused appellant were not at all put to the accused. The learned Advocate also submits that presence of P.W. 2 at the place of occurrence and his claim to be an eyewitness to the incident of assault is also doubtful as it has already been pointed out by Mr. Dastoor, learned Advocate of the appellant.

We have heard the learned Advocates of the respective parties. We have also perused the entire evidence on record as also the judgment of the Hon''ble Supreme Court. We find sufficient merit in the submissions made by the learned Advocate of the appellant. In the facts and circumstances pointed out by the learned Advocate of the appellant, we are of the view that it is very difficult to accept the evidence of P.W. 2 as that of an eyewitness and his presence in the place of occurrence is also doubtful. P.W. 2 never disclosed the names of assailants to P.W. 1 when at the first instance he rushed to the room of P.W. 1 and informed him about such assault. P.W. 2 also did not disclose it to the Investigating Officer that he had seen the incident of assault himself although he was examined on the following day i.e. on 20.2.1987. P.W. 1, although he stated in his evidence that he had seen the five accused persons, including the present appellant, fleeing away with weapons in their hands, did not disclose it in the First Information Report, which was recorded on the basis of his information. This also casts a serious doubt on the prosecution case. As regards the alleged dying statement we find that not a single question was put to the accused appellant with reference to such dying declaration when he was examined u/s 313 Cr. P.C. and we have already said that the circumstances appearing in the evidence, if not put to the accused in examination u/s 313 Cr. P.C., must be excluded and cannot be relied upon to convict the accused in a case.

We are of the view that the learned Trial Judge in convicting the accused appellant overlooked circumstances and significant features of the case, such as, inordinate and unexplained delay in despatching the First Information Report to the Magistrate ; the difference in the account given by the prosecution witnesses and as appearing from the First Information Report and serious defects in examination of the accused u/s 313 Cr. P.C. We do not, therefore, think that the case against the accused appellant was proved beyond reasonable doubt.

The appeal is accordingly allowed and the order of conviction and sentence passed by the learned Trial Judge is hereby set aside. The accused appellant is acquitted of the charge framed against him and he may be discharged from the bail bond.

A copy of this judgement along with LCR may be sent down to the court below immediately.

Urgent Xerox certified copy of this judgment and order may be supplied to the learned Advocates of the respective parties, if the same is applied for.

I agree