Kailash Chowdhury @ Singh Vs State of West Bengal

2. The backdrop of the appeal is discussed below in a nutshell:-

On December 23, 1993 at 10.55 hours, P.W.1 lodged a written complaint before the Officer-in-Charge, Chinsurah P.S. stating therein that on December 22, 1993 around 9.00 p.m. while his brother Tarak Roy (P.W.5) was returning home on a cycle after closing his shop at Khadinamore and after crossing beneath the railway bridge when he reached near a big Jamrul tree then Sunu Sarkar (appellant No. 2), Suresh Sankar and Kailash Singh alias Babu (appellant No. 1) in collusion and conspiracy with Shib Narayan Das(appellant No. 3) detained him and thereafter Sunu Sarkar and Kailash Singh by holding pistol on his back asked him to proceed towards nearby bush and then his brother refused and tried to run away towards home they fired at him from behind causing bleeding injury. But in spite of that injury his brother ran towards home and reached near the courtyard of Jagannath Banerjee. In the meantime hearing the sound of firing Anjali Banerjee (P.W.3) and Mina Mondal (P.W.4) came out and saw his brother and came to his help. Hearing the sound of firing he and his uncle Ram Chandra Roy also came out from the house and found his brother sustained bleeding injuries and immediately rushed him to Chinsurah Sadar Hospital where his brother was admitted in critical condition.

3. On the basis of the above written complaint, a Chinsurah P.S. Case No. 338 dated December 23, 1993 was started against the appellants and one Suresh Sankar under Section 341/326/307/114 IPC and 25/27 Arms Act. and the case was endorsed to P.W.8 for investigation who then investigated the same and on completion of investigation submitted charge sheet being No. 190 dated December 31, 1994 against the appellants under Section 341/326/307/114 IPC and 25/27 Arms Act with a prayer for discharge of accused Suresh Sankar as being fictitious person which was allowed.

4. Charges were framed on November 23, 1998 against the appellants under Section 341/307 IPC and then the appellants denied their involvement in the crime, trial commenced.

5. Prosecution examined 11 (eleven) witnesses and also produced and proved certain documents and articles and, thereafter, on completion of trial and after examination of the appellants under Section 313 Cr.P.C. learned court below passed the impugned judgment.

6. Mr. Sekhar Basu, learned senior advocate appearing on behalf of the appellants submitted that there were material contradictions in between the FIR and its maker with regard to the name and title of the accused persons, possession of firearm, the person who actually fired at the victim and omissions of important facts in the FIR which gave rise to a doubt regarding the prosecution story.

7. According to Mr. Sekhar Basu, the incident in question took place in the night and there was no source of light at that place, so presence and identification of the appellants at the place of occurrence becomes doubtful.

8. According to Mr. Sekhar Basu, blood stained earth, blood stained wearing apparels, weapon of offence, bullet and the cycle in question were not seized by the I.O. nor there was any such report of the FSL which raised doubt about the prosecution story.

9. According to Mr. Sekhar Basu, place of occurrence Aymadanga, as described in the charge, had not been proved by the prosecution by adducing evidence to that effect. Even there was no reference to Aymadanga in the rough sketch map and the FIR is also silent about any such incident at Aymadanga.

10. According to Mr. Sekhar Basu, there was considerable delay in sending the FIR to the court which also casts a reasonable doubt about the date and time of the alleged occurrence and is fatal for the prosecution case.

11. According to Mr. Sekhar Basu, learned court below did not take into consideration the aforesaid aspect of the matter for passing the impugned judgment, order of conviction and sentence.

12. Mr. Shekhar Basu, learned senior advocate appearing for the appellants relied on the decisions of Ram Kumar Pande v. the State of Madhya Pradesh reported in AIR 1975 Supreme Court 1026; Arjun Marik and Ors. v. State of Bihar reported in 1994 Supp (2) Supreme Court Cases 372; Thanedar Singh v. The State of Madhya Pradesh reported in (2002)1 Supreme Court Cases 487; Mobarak Sk. @ Mobarak Hossain and Ors. v. The State of West Bengal reported in (2011)1 C Cr. LR. (Cal) 687; Arab Sk. v. The State of West Bengal, 2016(1) Crimes 216 (Cal); Bulu @ Bala Subramaniam v. State of U.T. of Pondicherry 2016(1) E Cr. N (SC)13 & State v. Mariyanus Kerketta, 2016(1) E Cr. N (Cal) 131 (Calcutta High Court Circuit Bench at Port Blair) in support of his above submissions.

13. It is submitted by Mr. Ranabir Roy Chowdhury, learned advocate represent the state that place of occurrence near railway bridge situated at Ayamadanga has been duly proved by the prosecution witnesses.

14. According to Mr. Ranabir Roy Chowdhury formal FIR was proved and exhibited without any objection and no question about any delay in dispatching the FIR was put forward by the appellants. According to him it is a question of fact that can be proved by adducing evidence and unless such plea was taken at the initial stage prosecution was not in a position to bring evidence to that effect and as such it cannot be said that there was unreasonable delay in sending the FIR to court.

15. According to Mr. Ranabir Roy Chowdhury the contradictions as pointed out by the learned advocate for the appellants was not so vital going to the root of the case making the prosecution case doubtful.

16. According to Mr. Roy Chowdhury prosecution has been able to prove the case of the prosecution beyond all reasonable doubt.

17. Mr. Roy Chowdhury relied upon the decision of Paulmeli v. State of Tamil Nadu Tr. Insp. of Police, 2014(13) SCC 90 in support of his above submissions.

18. We have considered the submissions advanced by the learned counsels appearing for the respective parties. We have also given our thoughtful consideration to the evidence of prosecution witnesses and other materials on record for examining the propriety of the impugned judgment, order of conviction and sentence passed the learned court below.

19. Regarding question of contradictions and discrepancies in the depositions of witnesses, it is well settled that there are bound to be some discrepancies between the depositions of different witnesses then they speak in details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. But it has to be distinguished from contradiction. While minor discrepancy or variation in evidence will not make the prosecution case doubtful, contradiction in the statement of witness is fatal for the case. Reference may be made to the decision of State of Himachal Pradesh v. Lekh Raj, (2000) 1 SCC 247. The above principles of law have been elaborately discussed by us in the matter of Illias Mondal v. State of West Bengal, (2016)1 CAL LT 281 (HC).

20. In the case in hand, it is evident that save and except P.W.5, the victim, none of the witnesses examined by the prosecution were the witness to the occurrence in question. P.W.1, who lodged the FIR, claimed to have heard about the incident from the victim himself. He had stated in the FIR that on the relevant night then Tarak Roy (P.W.5) reached near a big Jamrul tree after crossing beneath the railway bridge then Sunu Sarkar, Suresh Sankar and Kailash Singh in collusion and conspiracy with Shib Narayan Das detained him and thereafter Sunu Sarkar and Kailash Singh by holding pistol on his back asked him to proceed towards nearby bush and when Tarak refused and tried to run away towards home they fired at him from behind causing bleeding injury. Whereas, in course of his examination before the court, he had stated that when Tarak Roy was returning home then on the way Shib Narayan Sonkar, Debu Sarkar, Suresh Sonkar and Babu Singha Roy caught hold him and brought him towards jungle where those four miscreants tried to shoot him dead and as such Tarak started fleeing away, then they opened fire causing bullet injury on his back.

21. But according to P.W.5, the victim, on the relevant night while he was returning home then on the way under railway bridge Suresh Sonkar @ Khatik appeared and pulled him down from the cycle and pressed his mouth by hand and dragged him near a tree where he found Sunu Sarkar having revolver in his hand, Kailash Singh having pistol in his hand and Shibnarayan Sonkar and they were discussing to kill him and then at that time Sunu and Kailash put pistol on his back and tried to bring him towards jungle. He then pushed Sunu and tried to flee away then one of them opened fire at him from behind causing bullet injury on his back.

22. According to P.W.5, on being hit by the bullet he became semi-conscious but managed to reach near the courtyard of the house of Jagannath Banerjee and cried out saying Bachao Bachao, then on hearing his shouting P.W3 and P.W.4 came and caught hold him and he narrated them about those miscreants and then P.W.3 and P.W.4 shouted and as such local people including his brother, uncle and others came there and brought him to hospital. But, according to P.W.3, Tarak Roy, told her that Shibnarayan and Sunu were responsible for his such injury and thereafter he became senseless and thereafter, local people and family members of P.W.5 came and took him to the hospital. She was not declared hostile by the prosecution rather prosecution relied on her evidence. P.W.4 though declared hostile by the prosecution but she admitted during cross-examination by the prosecution that Tarak told them that Shibnarayan and Sunu shot him.

23. Thus, from the above there appears contradictions in between the FIR, the statements of P.W.1 and P.W.5 with those of P.W.3 and P.W.4 with regard to the miscreants involved in the commission of the incident in question and the person responsible for causing injury to the victim.

24. The other villagers including the uncle of P.W.5 who came along with P.W.1 after hearing shouting of P.W.3 and P.W.4 and reportedly heard about the incident from P.W.5 were not examined by the prosecution. It appears from Ext.4, the bed-head ticket, that one Banani Roy and Sukumar Roy admitted P.W.5 at the hospital but Banani was also not examined by the prosecution while Sukumar Roy who also scribed the complaint did not whisper anything against the appellants or about the incident in question nor P.W.6 Kapil Roy has said anything about the involvement of the appellants in the commission of the alleged offence. The claim of P.W.9, the doctor, that he had removed the bullet on the same day after operation did not find corroboration from the noting in the treatment sheet, Ext.4(c) which shows removal of bullet on January 8, 1994. Strangely no such bullet was found and seized by P.W.8, the I.O. and if P.W.11, the Ward Master, is believed hospital records did not show recovery of any bullet from the person of the patient/victim. P.W.5 has claimed that on the relevant date and time he was returning home after closure of his shop at Khadinamore but according to the I.O., at the relevant time, P.W.5 had a motor repairing shop at Shyamnagar, 24-Parganas (North) which also find support from P.W.6.

25. According to P.W.5''s own admission at the relevant time there was darkness and there was no system of electric light at that place. If, this be so, then how he identified the appellants to be the miscreants has not been explained by him. There was also no specific evidence on record who actually fired at the victim and/or whose bullet hit him. Furthermore, P.W.5 himself stated during cross-examination that the wound he had shown in court was not caused by the accused persons.

26. In our opinion the above contradictions and discrepancies are very fatal for the prosecution case which goes to the root of the prosecution case. Learned court below completely overlooked the vital contradictions and discrepancies and was, therefore, in error in ignoring the above aspect of the matter.

27. Admittedly, no such blood-stained earth, wearing apparel, cycle, bullet and/or arms were seized by the I.O. and produced before court nor sent for forensic examination nor there was any cogent explanation to that effect. It is true that due to the laches on the part of the investigating officer prosecution case will not be washed out altogether but considering the facts and circumstances involved in the instant case the learned court below was not justified in ignoring the above aspect of the matter.

28. With regard to the proof of the place of occurrence at Aymadanga as described in the charge, we find from the record including the written complaint (Ext.1) and the FIR (Ext.2) that the complainant as also the victim are the residents of Aymadanga and the place of occurrence in question was near railway bridge at Aymadanga situated 3 kilometer west from the Chinsurah P.S. P.W.1 has clearly stated during cross-examination that it takes only five minutes to reach their house from the rail bridge of Chinsurah Station. P.W.5, the victim, has also stated during cross-examination that the distance of the said railway bridge and their house is less than � kilometer. It is true that P.W.5, the victim, has not specifically spelt out Aymadanga rail bridge but taking into consideration the entire circumstances there remains no doubt that the place of occurrence near rail bridge referred to by the victim was at Aymadanga. Therefore, our interference with the impugned judgment is not required on the above ground.

29. Regarding non disclosure of certain facts in the F.I.R., it is well settled that the primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. Reference may be made to the decision of Jitender Kumar v. State of Haryana, reported in (2012) 6 SCC 204 and the relevant portions of the above decision are quoted bellow :

"18. The court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognisable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. Reference is this regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v. State of M.P."

30. Regarding question of delay in sending the FIR, it is the settled proposition of law that it is not always a circumstance on the basis of which the prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case where the circumstances of delay may lead to serious consequences. Reference may be made to the decision of Arjun Marik and others v. State of Bihar reported in 1994 Supp (2) Supreme Court Cases 372 and the relevant portion of the above decision is quoted below:

"26. Even if we ignore the question of delay there is no material on record to show that it was actually despatched and received by the Magistrate concerned and if so on what date and time. A mere note in the FIR itself that report was despatched by special messenger is not enough. There is no mention as to which Magistrate it was despatched. The evidence of investigating officer is totally silent about it. It is true that quite often there are valid reasons for the delay in the despatch of the first information report and it is not always a circumstance on the basis of which the entire prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case where the circumstance of delay may lead to serious consequences. But in the present case as discussed above there are other circumstances discussed which cast a serious cloud on the prosecution case and this circumstance of delay in sending the FIR still hardens the suspicion and leads to the definite conclusion that the Fardbeyan and FIR both were recorded much later in point of time than the one as shown in the said documents and in any case in our considered opinion after the appellant�s house was raided and seizure of the articles was effected."

31. In the matter of Arab Sk. v. State of West Bengal and Ors. (supra), we set aside the judgment, order of conviction as also the sentence taking into consideration, amongst others, delay of six days in receiving the FIR by the Magistrate. We arrived at the decision taking into consideration the decisions of the Hon''ble Apex Court in the matter of Iswar Singh v. State of Uttar Pradesh reported in AIR 1976 SC 2423.

32. In the instant case, the incident in question took place in the night of December 22, 1993 and the FIR was lodged in the morning of December 23, 1993, but the same was placed before the Magistrate for obtaining his signature on December 30, 1993. So, the delay in receiving the FIR by the Magistrate was seven days. There has been no explanation for such inordinate delay in sending the FIR to Court from the side of the prosecution, which according to us is another circumstances which touches the credibility of the prosecution case. The learned Trial Court did not take into consideration the above aspect of the matter also.

33. Therefore, considering the entire facts and circumstances together with the discussions and observations made herein above, we have no hesitation to come to the conclusion that prosecution has failed to prove the commission of offence by the appellants beyond reasonable doubt and as such the conviction of the appellants cannot be sustained.

34. In view of the distinguishable facts and circumstances involved in this case, as discussed herein above, the decision of Paulmeli and Anr. v. State of Tamil Nadu Tr. Insp. of Police reported in 2014(13) SCC 90 (supra) do not help the prosecution case.

35. We accordingly set aside the conviction and sentence of the appellants and acquit them of the charges levelled against them.

36. The appeal is allowed accordingly.

37. Copy of this judgement along with the lower court records be sent down to the trial court immediately for information and taking necessary action.

38. Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.

Debasish Kar Gupta, J. - I agree.