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HIGH COURT OF TRIPURA
AGARTALA
CRL.A. NO.23 OF 2017
Smt. Banti Dey
W/o. Lt. Swapan Dey, of Gorurbandh, Ward No. 4, PS & PO-
Sonamura, Sepahijala
-----Appellant(s)
Versus
1. The State of Tripura
2. Shri Surjya Datta
S/o. Lt. Manindra Datta, of Gorurbandh, Ward No. 4, PS And
PO-Sonamura, Sepahijala.
3. Shri Badal Datta
S/o. Lt. Manindra Datta, of Gorurbandh, Ward No. 4, PS And
PO- Sonamura, Sepahijala.
4. Shri Gautam Datta
S/o. Lt. Manindra Datta, of Gorurbandh, Ward No. 4, PS And
PO- Sonamura, Sepahijala.
5. Shri Uttam Datta
S/o. Lt. Minindra Datta, of Gorurbandh, Ward No. 4, PS And
PO- Sonamura, Sepahijala.
6. Shri Titan Das
S/o. Shri Dulal Das, of Gorurbandh, Ward No. 4, PS And PO-
Sonamura, Sepahijala.
-----Respondent(s)
CRL.A. NO.34 OF 2017 The State of Tripura Represented by Under Secretary, Department of Home, Govt. of Tripura.
-----Appellant(s) Versus Page 2 of 28
1. Sri Surjya Datta S/o Lt. Manindra Datta, R/O Garurband, Ward No. 4, PS- Sonamura, Dist. Sepahijala Tripura.
2. Shri Badal Dutta S/o. Lt. Manindra Datta, R/O Garurband, Ward No. 4, PS- Sonamura, Dist. Sepahijala Tripura.
3. Sri Goutam Datta S/o. Lt. Manindra Datta, R/O Garurband, Ward No. 4, PS- Sonamura, Dist. Sepahijala Tripura.
4. Sri Uttam Datta S/o. Lt. Manindra Datta, R/O Garurband, Ward No. 4, PS- Sonamura, Dist. Sepahijala Tripura.
5. Sri Titan Das S/o Sri Dulal Das, R/O Garurband, Ward No. 4, PS- Sonamura, Dist. Sepahijala Tripura.
All are resident of Garurband, Ward No.4, P.S. Sonamura, Dist. Sepahijala Tripura.
-----Respondent(s) In Crl. A. No. 23 of 2017 For the Appellant(s) : Mr. Samar Das, Advocate. For the Respondent No.1 : Mr. R. Datta, P.P. For the Respondent Nos.2 to 6 : Mr. J. Bhattacharjee, Advocate. In Crl. No.34 of 2017 For the Appellant : Mr. A. Acharjee, Speical P.P. For the Respondents : Mr. J. Bhattacharjee, Advocate.
Date of hearing : 10.02.2021.
Date of delivery of
Judgment & Order : 31/03/2021.
Whether fit for reporting : NO.
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BEFORE
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH JUDGMENT & ORDER ( Arindam Lodh, J ) The present appeals arise out of the judgment and order of acquittal dated 12.05.2017 passed by the learned Additional Sessions Judge, Sonamura, West Tripura District (now Sepehajila District) in case No. Sessions Trial 10(WT/S) of 2013.
2. Out of the two appeals, the first one has been filed by Smt. Banti Dey being the complainant and the second one has been preferred by the State of Tripura. The appellants have urged to reverse the finding of acquittal returned by the learned Addl. Sessions Judge.
3. The prosecution case as projected by the learned Additional Sessions Judge is reproduced here-in-below:-
"This is a sessions Triable case and the prosecution was set into motion on the basis of a written complaint lodged by one Smt. Banti Dey, W/O Late Swapan Dey of Garurband, P.S.-Sonamura alleging inter alia that on 11.12.2010 in the evening at about 07.30 PM the accused persons namely, Surjya Datta, Badal Datta, Titan Das, Uttam Datta Page 4 of 28 and Goutam Datta assaulted her husband Swapan Dey and her brother Chinmoy Bhowmik and her other cousin brother Samir Bhowmik, Shyamal Bhowmik, Prasenjit Bhowmik and Tapan Bhowmik by means of iron rod, lathi and fist and blows as a result of which they sustained grievous bleeding injuries and were admitted to Melaghar and GB Hospital and the same incident took place at Garurband market."
4. Based on that information, FIR No.190 dated 11.12.2010 was registered under Section 325/34 of IPC and S.I. Samir Kanti Das being endorsed had taken up the investigation on 11.12.2010 itself.
During investigation, S.I. Samir Kanti Das visited the place of occurrence, prepared the hand-sketch map of the place of occurrence with a separate index, and also recorded the statements of the witnesses. He raided the houses of the accused-persons but failed to apprehend them. He made a prayer before the learned Court for adding Section 302 of IPC as the husband of the complainant, Swapan Dey succumbed to his injuries at GBP Hospital. Subsequently, due to official reasons, the case docket was endorsed to S.I. S. Basu Roy Chowdhury to complete the investigation. In the process, he re-examined four witnesses out of ten witnesses and also produced the Page 5 of 28 witness Suman Dey before the Court of Magistrate for recording his statement under Section 164(5) of Cr.P.C. The investigating officer collected the medical report of the victims, Sri Shyamal Bhowmik and Sri Tapan Bhowmik and after completion of investigation submitted charge-sheet against the accused Surjya Datta, Badal Datta, Goutam Das, Uttam Datta, Titan Das under Section 302/323/34 of IPC.
5. After commitment, the learned Addl. District Judge framed charges against the aforesaid respondents and the same were read over to which they pleaded not guilty and claimed to be tried.
6. During trial, the prosecution examined 15 witnesses, as follows:-
i) P.W.-1, Dharmendu Das who recorded the statement of witness Suman Dey @ Subinoy, aged about 6 years. P.W.-2, Smt. Banti Dey, the informant of this case and the wife of the deceased, Swapan Dey. P.W.-3, Tapan Bhowmik, another victim of this case. P.W.-4, Sanjoy Das who is the driver of auto truck bearing No.TR01-H-1838 by which the victim Swapan Dey was shifted to Melaghar Page 6 of 28 Hospital from Garurband market and he also carried the victim to GB Hospital, Agartala by another vehicle. P.W.-5, Md. Alek Hossain, who is the witness of inquest report of deceased-Swapan Dey. P.W.-6, Gopal Pal also is the witness of inquest report of deceased-Swapan Dey. P.W.-7, Dr. Mani Ranjan Debbarma who made requisition to the O/C GB TOP for post-mortem examination of deceased Swapan Dey. P.W.-8, Shyamal Bhowmik is another victim of this case. P.W.-9, Prasenjit Bhowmik is the brother of the informant and the victim. P.W.-10, Chinmoy Bhowmik is the brother of the informant and the cousin brother of the victims. P.W.-11, Dr. Mousumi Sarkar, Medical Officer, Melaghar Sub-Divisional Hospital, who attended the victim Tapan Bhowmik and Shyamal Bhowmik in the emergency of Melaghar Sub-Divisional Hospital. P.W.-12, ASI Arun Debbarma who prepared the inquest report and also made arrangement for post-mortem examination of deceased- Swapan Dey. P.W.-13, Master Subinoy Dey @ Suman, who is the son of informant and deceased Swapan as well as nephew of the victims. P.W.-14, S. Basu Roy Chowdhury is the R/O and 2nd I/O of this case. P.W.-15, SI Samir Kanti Das is the 1st I/O of this case.
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The prosecution also introduced as many as ten documents which were exhibited on proof.
7. At the closure of recording evidence, all the accused persons were examined under Section 313 Cr.P.C. when they were noticed about the incriminating evidences as surfaced from the prosecution witnesses. They denied the allegation levelled against them. The accused persons, the private respondents herein declined to adduce any evidence on their behalf.
8. Since both the appeals are filed against the order of acquittal, before adverting to the merit of the appeals, we would like to revisit the guiding principles as delineated by the Apex Court in the case of Chandrappa & ors. Vs. State of Karnataka reported in (2007) 4 SCC 415 regarding the powers of the appellate court while dealing with the appeal against the order of acquittal after taking into consideration of its earlier decisions[SCC p. 432 para.42]:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:Page 8 of 28
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law.
(3) Various expression such as, "substantial and compelling reasons", " good and sufficient grounds", " very strong circumstances", " distorted conclusions", "glaring mistakes", etc, are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusion are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal recorded by the Trial Court."
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9. Keeping in mind the aforesaid principles, we shall decide the sustainability of the judgment and order of acquittal as passed by the learned Addl. Sessions Judge, rejecting the prosecution version in support of the charges framed against the accused-persons.
10. Mr. Samar Das, learned counsel appearing for the complainant-appellant contended that the learned Addl. Sessions Judge committed a serious error in rejecting the versions of the injured eye-witnesses, particularly, P.W.2, and P.W.-13, the wife and son of the deceased respectively. According to learned counsel, the learned Addl. Sessions Judge ought to have relied upon the evidence let in by P.W.-3 (Sri Tapan Bhowmik), P.W-8 (Sri Shyamal Bhowmik), P.W.-9 (Sri Prasenjit Bhowmik) and P.W.-10 (Sri Chinmoy Bhowmik) who being the brothers of the complainant-appellant, were the victims of the incident as they also had sustained injuries due to the assault caused by the accused persons.
11. On the other hand, Mr. J. Bhattacharjee, learned counsel appearing for the private respondents who were the accused in the case, contended that the prosecution had miserably failed to establish the charges levelled against the Page 10 of 28 accused persons. Mr. Bhattacharjee, learned counsel candidly submitted that the entire prosecution case was manufactured and afterthought. Lots of improvements, exaggerations, contradictions, and deviation from earlier statements were apparent in the deposition of the prosecution witnesses who claimed to be the victims of the incident, being brutally assaulted by the accused persons with the blows of iron rod and 'lathis'(sticks). Learned counsel defending the judgment of the learned Addl. Sessions Judge contended that there was no error committed by the Court holding that neither the complainant-Banti Dey (P.W.-2) nor her son (P.W.-13) and brothers were of any credence as their testimonies appeared to be unreliable and untrustworthy. Learned counsel for the accused-persons emphasized that even the prosecution has failed to establish a particular spot as a place of occurrence of the crime. The investigating officer shifted the scene of crime during his investigation intentionally only to implicate the accused persons with the case on hand.
12. The above rival submissions advanced by the learned counsel appearing for their respective parties Page 11 of 28 prompted us to make a survey of the ocular testimonies and materials brought on record by the prosecution. For the sake of gravity, we would like to recapitulate the evidence of P.W.2 and P.W.-13, at the outset.
12.1. P.W.-2, Smt. Banti Dey is the wife of the deceased, Swapan Dey. She deposed that all the accused persons were close relatives of her deceased husband, Swapan Dey. On 11.12.2010, her husband went to Gururband market in the evening accompanied by his son, Subinoy Dey @ Suman (P.W.-13). She was watching T.V. programme at the house of Md. Abdul Miah, when at about 07.30 PM she heard shouting of her son, P.W.-13 from the side of the ground of the Garurband High School asking for help. She immediately rushed to the spot and saw the accused respondents torturing her cousins, Sri Tapan Bhowmik, Sri Shyamal Bhowmik, and her brother Sri Chinmoy Bhowmik by means of 'lathi‟ (stick). In that meanwhile, her husband, Swapan Dey also arrived at the place of occurrence from Garurband market and noticed the incident. As soon as her husband stood against the accused respondents, Goutam Datta struck on the head of her husband by a lathi, followed by 3/4 blows inflicted by Titan Page 12 of 28 Das with a lathi uttering the words to kill her husband. Her husband fell down on the ground. She tried to rescue her husband but the accused persons hit her with lathi. P.W.-2 further stated that at the place of occurrence, there was a temple of 'Pagalimashi'. Thereafter, she shifted the entire injured persons to Melaghar hospital with the help of her brother and some other local persons by a small transport vehicle. However, her husband was, thereafter, shifted to GBP Hospital, Agartala. After returning from Melaghar Hospital, she went to the house of one Tarun Kr. Chakraborty, Advocate's Clerk along with her in-law Kanailal Das to write an ejahar according to her version. She lodged the FIR on the same day. On 13.12.2010, her husband succumbed to his injuries at GBP Hospital. 12.2. P.W.-13, Subinoy @ Suman Dey was the minor son of the deceased Swapan Dey and P.W.-2. At the time of his deposition, he was aged about 11 years. He deposed that on the fateful evening, he went to Garurband market along with his father. While they were returning and reached in front of the temple of 'Pagalimashi', his father uttered a word 'kitare' (what happened). At that time, respondent-Gautam Datta suddenly struck a blow on the Page 13 of 28 head of his father with a bamboo stick. At that moment, he started shouting when his mother, Banti Dey had appeared at the place of occurrence, before the accused-Gautam Datta struck his father. At the same time, Titan Das told his associate to kill his father when her mother jumped over the body of his father attempting to save him but all the private-respondents started to assault his father. Subsequently, his injured father was taken to hospital by his mother with the help of his maternal uncle. P.W.-13 confirmed that he made statement before the Magistrate where he put his signature (Exbt-1/2 series).
13. P.W.-3, Sri Tapan Bhowmik being the brother of P.W.-2 deposed that on 11.12.2010, he went to Gururband market at about 07.00/07.30 PM and heard hue and cry of his brother, Shyamal Bhowmik (P.W.-8) from the side of the temple of 'Pagalimashi'. He rushed to the spot and saw the accused-persons assaulting his brother Shyamal. He tried to resist when all the accused persons attacked him with lathi and assaulted him. Hearing his alarm, his other brothers, namely Chinmoy (P.W.-10), Prasenjit (P.W.-9) and Samir Bhowmik rushed to the spot when all the accused attacked them with lathi. He further deposed that he saw the Page 14 of 28 accused-persons with the help of electric blub of the temple of 'Pagalimashi'. Deposing further, P.W.-3 stated that since he fell down on the ground, he saw his brother-in-law, Swapan Dey reached there accompanied by his son Suman (P.W.13). All on a sudden, the accused-persons, namely, Gautam Datta and Titan Das gave some blows on the head of Swapan Dey by a lathi who fell down on the ground, but, series of blows were inflicted on the person of his brother- in-law. In that meanwhile, his sister arrived at the place of occurrence and jumped over the body of her husband when all the accused-persons assaulted his sister (P.W.2) physically. Subsequently, Tinku Das and Chinmoy shifted all the injured persons including him to Melaghar Hospital by the vehicle of Sanjoy Das. Swapan Dey was shifted to GBP Hospital, Agartala where he succumbed to his injuries on 13.12.2010.
14. P.W.-8, Shyamal Bhowmik, another brother of the informant (P.W.-2) deposed in the same tune as that of P.W.3, Tapan Bhowmik.
15. P.W.-9, Prasenjit Bhowmik deposed that on 11.12.2010 when he was at Gururband market, he heard hue and cry of some persons from the side of the temple of Page 15 of 28 'Pagalimashi'. He rushed to the spot and saw his brother-in- law, Swapan Dey lying on the ground with bleeding injuries and he also saw his cousin sister Banti Dey over the body of Swapan Dey. The accused persons were beating his brother-in-law and Bunti by means of lathi and he saw some other persons at that place. Subsequently, they shifted the injured persons to Melaghar Hospital. Swapan Dey was referred to GBP Hospital where he succumbed to his injuries on 13.12.2010.
16. P.W.-10, Chinmoy Bhowmik deposed that on 11.12.2010, at about 07.30 hours while he was at his grocery shop at Gururband market, heard a quarrel between his cousin-brother, Shyamal Bhowmik and Badal Datta at Garurband market on the issue of refund of loan money by the accused, Badal Datta. After few minutes, he heard hue and cry from the side of the temple of 'Pagalimashi' at Gururband. Then and there he rushed to the spot and saw the accused-persons assaulting his cousins, Shyamal Bhowmik and Tapan Bhowmik by means of lathi. When he arrived there, all the accused-persons also started assaulting him by giving fists and blows and also by lathi. He further deposed that in that meanwhile, Swapan Page 16 of 28 Dey arrived at the place of occurrence and tried to know about the cause of such incident when accused-Uttam Datta struck at the head of Swapan Dey by lathi and at the same time, Titan Das gave 2/3 successive blows upon the head of Swapan Dey. Swapan Dey fell down on the ground when his wife-Banti Dey rushed to the spot and jumped over the body of her husband to save him. But all the accused persons indiscriminately gave blows on their bodies and then fled away. He managed to shift Swapan Dey to Melaghar Hospital by the vehicle of Sanjoy Das wherefrom he was referred to GBP Hospital, Agartala. Swapan Dey succumbed to his injuries on 13.12.2010.
17. These are the material witnesses who adduced their evidence and claimed their presence at the time of alleged occurrence at the scene of the crime. P.W.-4, Sanjoy Das carried the victim, Swapan Dey from Garurband market to Melaghar Hospital by his vehicle. P.W.11, Dr. Mousumi Sarkar was the M.O of Melaghar Hospital. She deposed that on 12.12.2010 in the morning two patients, namely Tapan Bhowmik and Shyamal Bhowmik came to the emergency ward of Melaghar Hospital. She found no external injury on the body of Shyamal Bhowmik and after Page 17 of 28 examination of Tapan Bhowmik, she found there was swelling over his left cheek and abrasion on the left knee. They were discharged with medical aid.
18. P.W.-5, Md. Alek Hossain and P.W.-6 Gopal Paul are the witnesses of inquest report of deceased-Swapan Dey.
19. P.W.-7, Dr. Mani Ranjan Debbarma sent requisition to the O/C GB TOP for arranging PM examination of deceased-Swapan Dey.
20. P.W.-12, ASI Arun Debbarma prepared the inquest report of deceased-Swapan Dey at GBP Hospital Morgue and subsequently prepared the dead body challan of deceased Swapan Dey after post-mortem examination.
21. P.W.14 and P.W.15 are the investigating police officers who after investigation submitted charge-sheet against the accused persons namely, Surjya Datta, Badal Datta, Goutam Datta, Uttam Datta and Titan Das under Section 302/323 and 34 of IPC.
These are the sum and substance of the evidence of prosecution witnesses.
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22. The learned Addl. Sessions Judge had drawn the following points for determination of the complicity of the accused-persons behind the crime:-
"i) Whether the prosecution has been able to prove that the accused persons, respondents No.2 to 6 in furtherance of common intention committed murder of Swapan Dey on 11.12.2010 at 19.30 hours by means of lathi, rod and fist and blows in front of the temple of Pagalimashi at Garurband under Sonamura P.S.?
ii) Whether the prosecution have been able to prove that the respondents No.2 to 6 in furtherance of common intention caused hurt to Shyamal Bhowmik and Tapan Bhowmik on 11.12.2010 at 19.30 hours in front of the temple of Pagalimachi at Garurband by means iron rod, lathi and fist and blows as a result of which they sustained injuries and treated at Melaghar Hospital and GB Hospital?"
23. The learned Addl. Sessions Judge having considered the evidence and materials on record was of the opinion that P.W.-2, Smt. Banti Dey, the informant and P.W.-13, Subinoy Dey @ Suman, the son of the deceased and P.W.2 were the star witnesses. That apart, P.W.2 claimed to be an eyewitness being one of the injured victims.
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24. It transpires that the prosecution failed to examine any of the independent witnesses, though, the alleged incident had occurred just at 19.30 hours and allegedly in front of the temple of 'Pagalimashi‟ or at Garurband market. As such, it would not be unnatural to expect that during that period, there would be many commuters in the market including businessman and inhabitants in the Garurband market and many disciples in and around the 'Pagalimashi' temple.
25. P.W.-3. P.W.-8, P.W.-9 and P.W.-10 are the brothers as well as the accused-persons of the counter case No.S.T(T-II) 01 OF 2015.
26. Before we discuss the evidentiary value of the prosecution witnesses, it is worth to mention that relating to the same incident, two FIRs were lodged at Sonamura P.S. on 11.12.2010; one by Gautam Datta at about 21.15 hours which had been registered as Sonamura P.S. Case No.189/2010 under Section 325/34 of IPC against Samir Bhowmik, Nikhil Bhowmik, Pranjit Bhowmik, Shyamal Bhowmik, Tapan Bhowmik and Chinmoy Bhowmik. In respect of the same incident, another FIR had been lodged by Smt. Banti Dey at 21.25 hours before the same P.S. Page 20 of 28 which was registered as Sonamura P.S Case No.190/2010 under Section 325/34 of IPC against respondents No.2 to 6. It is transpired that the contents of both the complaints were found to be the same except the names of the accused-persons. However, according to us, the impact of lodging two FIRs as afore-stated may be dealt with later on, after evaluation of the merits of the prosecution evidence.
27. Now, on close scrutiny of the evidence and materials on record, it transpires that P.W.-13, Suman Dey and his father Swapan Dey were returning home from Garurband market. En route to home, when they reached in front of the temple of 'Pagalimashi', his father uttered a word 'kitare' (what happened). At that instance, Gautam Datta struck on the head of his father with a Bamboo stick. He started shouting, when, his mother Banti Dey (P.W.-2) had appeared at the place of occurrence before Gautam Datta inflicted blows on the head of his father. Titan Das told his associate to kill his father. His mother jumped over the body of his father to save him but respondents No.2 to 6 started assaulting his father with bamboo sticks. His father was taken to hospital by his mother with the help of his maternal uncle. What emanates from the statement of Page 21 of 28 PW-13 is that his mother Banti Dey arrived at the place of occurrence before the blow was given by Gautam Datta and other accused-persons and deceased Swapan Dey arrived near „Pagalimashi temple‟ before the arrival of Bunti. 27.1. At the same time, P.W.-13 stated that when his father arrived at the place of occurrence and uttered the word 'kitare' at that time, Gautam Datta struck him when he shouted raising alarm. Therefore, the first part of his statement in respect of the circumstance that Gautam Datta had struck his father just after utter the word 'kitare' is found to be contradictory to his later part of the statement that his mother, Banti arrived at the spot before Goutam Datta struck his father. It is further noticed that P.W.13 stated a different story what he made in his earlier statements recorded by both the IOs and Magistrate. Therefore, we find force in the submission of the learned counsel appearing for the respondents No. 2 to 6 that there are lots of exaggeration in the version of the prosecution witness, like P.W.-13 having different version before the I.Os, Magistrate as well as before the Court. 27.2. Another striking feature is that P.W.-13 stated that after hearing his shouting, his mother, Banti Dey came Page 22 of 28 to the spot and having noticed she jumped over the body of his father to save him. The prosecution witnesses, like P.W.-3, Tapan Bhowmik, P.W.-8, Shyamal Bhowmik, P.W.- 9, Prasenjit Bhowmik, P.W.-10, Chinmoy Bhowmik stated that they had also seen Banti Dey to jump over the body of her husband, Swapan Dey when the respondents No.2 to 6 were inflicting blows by lathi, iron rod, etc. Naturally, if that be so, then, Banti must have sustained injuries on her person. But, there is no evidence that Banti had suffered injuries out of that incident, which, according to us, throws light to suspect the very genesis of the prosecution case in implicating the respondents No.2 to 6 with the alleged crime. In our opinion, learned Addl. Sessions Judge was correct in his approach in discarding the evidence of P.W.13.
28. The learned Addl. Sessions Judge has rightly held that when P.W.2, P.W.3, P.W.8, P.W.9 and P.W.10 stated in their evidence that there were several blows inflicted by the respondents No.2 to 6 upon the person of the deceased-Swapan Dey, but, the medical evidence including the inquest report and post-mortem examination report did not support this version of the prosecution Page 23 of 28 witnesses. The inquest report, post-mortem report, and the doctor who examined the deceased deposed that they found a single blow on the head of the deceased and there is no other mark of violence on the person of the deceased. 28.1. Furthermore, according to P.W.2, P.W.3, P.W.8, P.W.9 & P.W.10, they were severely assaulted by the respondents No.2 to 6. But, the evidence let in by the prosecution shows that on the next day only two of them i.e. Shyamal Bhowmik (P.W.-8) and Tapan Bhowmik (P.W.-
3) visited Melaghar Hospital when doctor examined them and discharged them after giving first aid. The doctor, P.W.11 opined that she found no external injuries on the person of Sri Shyamal Bhowmik and after examination of Tapan Bhowmik, she found two injuries, minor in nature. She identified her report as Exbt-5 and Exbt-6. Under these circumstances, the learned Addl. Sessions Judge came to a finding that the version of P.W.-2(Banti Dey) was not reliable in respect of the fact that they were brutally assaulted by the respondents No.2 to 6.
29. Again, from the evidence of P.W.-2, it transpires that when she rushed to the spot she found respondents No.2 to 6 had been assaulting her brother, Tapan Bhowmik Page 24 of 28 brutally, and during that time her husband, Swapan Dey arrived at the place of occurrence; meaning thereby, her husband came to the place of occurrence after her arrival at the place of occurrence. Not only that already there were incidents of assault between the brothers of P.W.-2 and respondents No.2 to 6. While P.W.13 stated that P.W.-2 came to the place of occurrence after hearing the shout of P.W.13, when Gautam Datta struck on the head of his father. Curious enough, in the cross-examination, P.W.-2 further confirmed that after her arrival, the deceased- Swapan Dey arrived at the place of occurrence. 29.1. Again, from the evidence it transpires that in the FIR the informant (P.W.-2) stated that the incident took place at Garurband market while at the time of deposition, P.W.2 & P.W.13 and other witnesses stated that the alleged incident took place in front of the temple of 'Pagalimashi'. The first I.O. drawing the hand-sketch map of the place of occurrence has mentioned that the place of occurrence is situated in the school field of Garurband Madhyamik Vidyalaya and not at Garurband market. According to the hand-sketch map, the temple of 'Pagalimashi' is situated at a distance of about 10 yards towards the eastern side of the Page 25 of 28 place of occurrence. For such shifting of scene of crime we cannot take a different view than that of the view of the learned Addl. Sessions Judge that the prosecution has failed to prove the actual place of the crime.
29.2. In this regard, we find another serious discrepancy when P.W.-10 deposed that while he was in his grocery shop at Garurband market at 07.30 PM he heard a quarrel between his cousin brother, Shyamal Bhowmik and Badal Datta at Garurband market on the issue of refund of money. So, considering the evidence of this witness, it can easily be said that the alleged quarrel started at Garurband market and not in front of the temple of 'Pagalimashi'.
30. Another striking feature what we have noticed is that according to P.W.3, Tapan Bhowmik, he came to the place of occurrence before Banti Dey (P.W.2) came there. P.W.2 stated that she found the respondents No.2 to 6 were assaulting Tapan Bhowmik, Shyamal Bhowmik and Chinmoy Bhowmik when she went to the place of occurrence. While, P.W.8 Shyamal Bhowmik stated that out of an altercation between him and Badal Datta, he was called in front of the temple of 'Pagalimashi' where the respondents No.2 to 6 assaulted him by fists and blows and thereafter, Tapan Page 26 of 28 Bhowmik and Chinmoy came there when the accused persons also assaulted them. P.W.9, Prasenjit Bhowmik stated that on the date of the incident after hearing hue and cry he rushed to the place of occurrence and found his brother-in-law, Swapan Dey was lying on the ground with bleeding injuries and he also saw Banti Dey over the body of the Swapan Dey. But surprisingly, P.W.9 failed to disclose regarding the presence of Shyamal Bhowmik, Chinmoy Bhowmik and Tapan Bhowmik at the place of occurrence at the time of the alleged crime.
31. Under these circumstances, the learned Addl. Sessions Judge came to the finding that their evidence appeared to be absolutely doubtful and could not earn any confidence in respect of their truthfulness.
32. Furthermore, though P.W.9 has stated that he found the victim Swapan Dey laying on the ground with bleeding injuries, but, it appears that none of the investigating officers felt it necessary to collect the bloodstained earth from the place of occurrence or seized the wearing apparels of the deceased for the purpose of forensic examination to substantiate the allegation of the informant as well as to confirm the place of occurrence. Page 27 of 28
33. In view of above major irreconcilable discrepancies, we find no error in the findings of the learned Addl. Sessions Judge that the investigation of the instant case has not been assailed fairly.
34. In the light of above, in our ultimate analysis, and on reappraisal of the evidence and materials brought on record, we are unable to form a different view than that of the view taken by the learned Addl. Sessions Judge in acquitting the respondent Nos.2 to 6 from the charges levelled against them since the view as taken by the Trial Court appears to be possible and plausible, and such findings cannot in any way be said to be perverse to call for interference of this Court by adopting an alternative view.
35. As we have already held that the prosecution evidence does not inspire our confidence and there is no ground to reverse the findings returned by the learned Addl.Sessions Judge, we refrain from burdening this judgment by way of discussing the impact of two FIRs and the investigation carried out on the basis of the subsequent FIR lodged by P.W.2, Banti Dey, and as to the question of law, whether the subsequent FIR is hit by Section 162 of Cr.P.C. However, lodging of two FIRs aptly proves that Page 28 of 28 there was clash between the respondent Nos.2 to 6 and the prosecution witnesses Nos.2, 3, 8, 9 & 10. But, prosecution has failed to remove the cloud emerged regarding the circumstance who had given the fatal blow to the deceased Swapan Dey.
36. For the reasons stated above, both the appeals filed by the complainant-appellant as well as the State- appellant have failed to impress us, necessary to reverse the findings of acquittal of respondent Nos.2 to 6 as returned by the learned Trial Judge.
37. Accordingly, both the appeals as aforestated stand dismissed.
Send down the LCRs.
(ARINDAM LODH,J) (AKIL KURESHI,CJ) suhanjit