Palanu Roy & Anr vs State Of West Bengal
2022 Latest Caselaw 1529 Cal

Item No. 56 & 57




                   IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL APPELLATE JURISDICTION
                             APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                   And
The Hon'ble Justice Bivas Pattanayak

                              C.R.A. 259 of 2016
                                       +
                                 CRAN 3 of 2021
                               Palanu Roy & Anr.
                                       Vs.
                              State of West Bengal
                                      With
                              C.R.A.499 of 2015
                         Basu Roy @ Basudeb Roy & Ors.
                                    -Vs-
                            The State of West Bengal

For the Appellants        :    Ms. Subhasree Patel, Advocate
                               Mr. Subir Debnath, Advocate,
                               Mr. Sohan Banerjee, Advocate.
                               Ms. Roma Roy, Advocate,
                               Ms. Saini Das, Advocate.

For the State             :    Mr. Swapan Banerjee, Advocate,
                               Mr. Narayan Prasad Agarwal, Advocate,
                               Mr. Suman De, Advocate,
                               Ms. Amita Gaur, Advocate.

Heard on                  :    28th March, 2022.


Judgment on               :    28th March, 2022.

Joymalya Bagchi, J. :-

         Criminal Appeal No. 223 of 2017 was dismissed as not

maintainable vide order dated 16.03.2022. Similarly, Criminal Appeal No.

259 of 2016 is also dismissed as not maintainable since the appellants

had preferred an earlier appeal being Criminal Appeal No. 499 of 2015.
                                      2




       In the said appeal, the appellants have assailed the judgement

and order dated 27.03.2015 and 30.03.2015 passed by the learned

Additional Sessions Judge, 2nd Court, Raiganj, Uttar Dinajpur in Sessions

Case No.12/2010 convicting the appellants for commission of offence

punishable under Section 302 read with Section 34 of the Indian Penal

Code and sentencing them to suffer imprisonment for life each and to pay

a fine of Rs. 5,000/- each, in default, to suffer rigorous imprisonment for

five months more.

       Prosecution case, as alleged against the appellants is to the effect

that on 27.03.2007 around 7.45 a.m., one America Roy i.e. the deceased

herein had left his residence in a bicycle for going to Raiganj Court. He

was carrying legal documents. Around 8.15 a.m., his son Malin Roy went

to the field of one Subal Mondal to defecate. When he was returning from

the field after defecation, he saw the appellants catch hold of his father

on the pucca road towards Bangal Bari to the north of the land of Subal

Mondal. His father fell down on the road and thereafter Ajoy Roy and his

son Sambhu Roy attacked the victim with farsha and sabol. Out of fright,

Malin ran home and informed the incident to his mother. Thereafter, he

returned to the spot with his mother and found body of his father lying at

the place of occurrence with bleeding injuries in his head. House of Ajoy

Roy was situated on the western side of the house of the deceased and a

prolonged land dispute was going on between them. A case had also been

lodged in this regard and Ajoy had held out threats to kill the victim few

days earlier. Malin Roy (P.W.1) lodged written complaint at Raiganj Police
                                      3




Station which was registered Raiganj P.S. Case No. 107 of 2007 dated

27.03.2007

under Sections 302/34 I.P.C. against the appellants and one

Ajoy Roy, since deceased.

In course of investigation, Basu Roy @ Basudev Roy and Sambhu

Roy were arrested and on their leading statement, a farsha was

recovered. Subsequently, Ajoy Roy was arrested and Nishi Sarkar

surrendered before the Court. The case was committed to the Court of

Sessions and charges were framed under Sections 302/34 I.P.C. against

the accused persons. They pleaded not guilty and claimed to be tried. In

course of trial, prosecution examined 11 witnesses to prove its case.

Defence of the appellants was one of innocence and false implication. In

course of trial, Ajoy Roy expired.

In conclusion of trial, learned trial Judge by judgment and order

dated 27.03.2015 and 30.03.2015 convicted and sentenced the

appellants, as aforesaid.

Ms. Patel, learned Advocate appearing for the appellants aruged

P.W.1 is not a truthful witness. His presence at the place of occurrence is

highly unlikely. He claimed he had gone to the field of Subal Mondal to

defecate. On his way back at around 8.15 a.m., he saw the incident. On

the other hand, his mother (P.W.2) stated that he had gone out from the

house for work. While P.W.1 stated the field of Subal Mondal was ½ km

away from their residence, P.W.2 claimed they went to a field which is 10

cubits away from their house to answer nature's call. P.W.1 saw the

incident of assault for ½ an hour but remained mum. He did not take

effort to save his father nor did he raise any hue and cry. P.W.6, his aunt

who claimed to be present in their house on the fateful day stated P.W.1

upon going to the place of occurrence had seen the dead body of his

father. This improbabilises the presence of P.W.1 at the place of

occurrence when the incident occurred. There was enmity between the

appellants and family of P.W.1. Hence, it is highly probable that the said

witness out of previous grudge falsely implicated the appellants. Recovery

of farsha on the leading statement of Basudev and Sambhu is also not

proved. Statements of the said witnesses were not reduced into writing

nor were they exhibited. P.W.5, witness to the seizure does not support

the prosecution case that the recovery was on the showing of the said

accused persons. In the event P.W.1 is disbelieved, mere abscondence by

Nishi Sarkar cannot affix culpability. Hence, the appellants are entitled to

an order of acquittal.

On the other hand, Mr. Swapan Banerjee, learned Advocate

appearing on behalf of the State argued P.W.1 is a reliable eye witness.

After his father had left on a bicycle for Raiganj Court with documents, he

left his residence to defecate in the field of Subal Mondal. While defecating

he saw the incident. As the incident occurred in a deserted place, he did

not raise any hue and cry. Out of fear, he rushed to his residence and

informed the incident to his mother. This is also corroborated by his aunt

(P.W.6). F.I.R. was promptly lodged by P.W.1 ruling out any possibility of

false implication. There was previous enmity between Ajoy Roy and the

deceased which gave motive to commit the crime. On the leading

statement of Basudev and Sambhu, weapon of offence was recovered

which was identified by P.W.1 in Court. Soon after the incident, Ajoy Roy

and Nishi Sarkar had absconded which supports the prosecution case.

Basudev and Sambhu had threatened P.W.1 during investigation and

their bail was cancelled. These circumstances also point to the guilt of the

appellants. Hence, the appeal is liable to be dismissed.

I have gone through the evidence on record. From the prosecution

evidence and the submissions at the Bar, it appears P.W.1 is the sole eye

witness. He is the son of the deceased. He deposed on the fateful day i.e.

27.03.2007 his father had left their residence on a bicycle for Raiganj

Court. He went to defecate in the field of Subal Mondal. At that time, he

saw Basu Roy, Palan Roy and Nishi Sarkar accost his father and they

threw him on the ground. Then Ajoy and Sambhu gave farsha and sabol

blow on his head, knee and thumb. Out of fear, he ran to his house and

informed the incident to his mother and other village people. Thereafter,

they came to the spot and found his father lying dead. His uncle,

Radhesyam Roy, aunt, Fulkumari and others also came to the spot. There

was a land dispute between his father and the accused persons. As a

result, they murdered his father. He lodged written complaint which was

scribed by Ratan Sarkar (P.W.4). He put his signature on the complaint.

Police came to the village. Police held inquest over the dead body. He put

his signature on the inquest report. Police also seized blood stained earth,

blood stained wearing apparels, chappal, a nylon bag with documents and

Avon cycle of his father under a seizure list. He signed on the seizure list.

He identified the articles in Court.

In cross-examination, he stated there was a paddy field on either

side of the road where his father was murdered. There was wedding in the

paddy field. His house is about ½ kms. away from the place of

occurrence. It takes 8/10 minutes from the place of occurrence in a

bicycle to reach the house. It takes 12 minutes from the place of

occurrence by walking. He was defecating at a spot 30 cubits from the

place of occurrence when the incident occurred. He saw the incident for

half an hour. He informed his mother around 8/8.30 a.m. He lodged

complaint at 11 a.m.

P.W.2 (Rukh Muni Roy), is the wife of the deceased and the mother

of P.W.1. She stated incident occurred around 8/8.30 A.M. She had been

informed by her son Malin Roy about the incident. Thereafter, she went to

the place of occurrence and found her husband lying dead.

In cross-examination, she, however, is silent with regard to the

claim of P.W.1 that he had gone to the field of Subal Mondal to answer

nature's call. On other hand, she claimed after taking meal, P.W.1 and his

father had left for work. She, further, stated they went to the field which

is 10 cubits away from their house to answer nature's call.

P.W.6 (Fulkumari Roy), aunt of P.W.1 deposed on the previous day

of the incident she came to the house of the deceased. She further

deposed that her nephew (P.W.1) went to the place of occurrence and after

seeing the dead body of his father came back. They also went to the place

of occurrence.

In cross-examination, she stated after the deceased had left the

house, her nephew left the house to attend nature's call. He had gone by

foot.

From the aforesaid evidence he had gone to defecate in the field of

Subal Mondal which is about ½ kms away from his residence and saw the

incident. Hence, he is a chance witness.

Let me examine whether such claim of P.W.1 is probable and

consistent with other evidence on record. P.W.2, mother of P.W.1 does not

support the claim of her son that he had gone out on that day around 8

a.m. to defecate. She stated her son had left for work in the morning after

taking meal. She further stated they used to go to a field 10 cubits away

from their residence to answer nature's call. The aforesaid evidence of

P.W.2 renders the possibility of P.W.1 going to the field of Subal Mondal

at a distance of ½ km from their house for defecating improbable. P.W.2

further contradicts her son and stated he went out in the morning after

taking meal for work and not for defecation. Thus, P.W.1 witnessing the

murder of his father while defecating in the field of Subal Mondal situated

at a distance of ½ kms away from his residence is not compatible with the

deposition of his mother, P.W.2. Though P.W.6 (aunt of P.W.1) stated her

nephew had left the residence to answer nature's call, she states when

her nephew went to the place of occurrence he saw the dead body of his

father and returned home weeping. If P.W.6 is to be believed, P.W.1 at its

height can be treated as a post occurrence witness.

P.W. 1 stated the incident occurred on a road between paddy field

where weeding was going on. In all probability there were agricultural

workers who were undertaking the weeding in the paddy field. Hence, his

plea that he did not find anyone while going or coming from the paddy

field is most improbable. His conduct is also most unnatural. Though the

witness, P.W. 1 saw the brutal assault of his father for half an hour he

kept silent and did not make any attempt to save his father. These

circumstances render the version of P.W. 1 unnatural and I do not

consider it safe to rely on him as a truthful witness.

Mr. Banerjee strenuously argues first information report was

promptly recorded by P.W.1 which rules out any possibility of false

implication. He further submits there was prior enmity between Ajoy Roy

and the deceased. As a result, appellants committed the murder. Prior

enmity is a double adged sword. While it may provide motive to commit

the crime, it may also act as an incentive for a grieving son to falsely

implicate the appellants in the murder of his father. P.W.1 is not a

natural witness. His presence at the place of occurrence which is half a

kilometer away from his residence for the purpose of defecation appears

to be based on shaky foundations. It is unclear why the said witness

would go to defecate half a kilometer away from his house when his

mother stated they used a field 10 cubits away from their residence to

answer nature's call. His mother also did not support the claim of P.W.1

that he had gone out on the fateful day to answer nature's call. On the

other hand, she stated he had gone out for work. P.W.6, aunt of P.W.1

states upon going to the place of occurrence, her nephew saw the dead

body and came back weeping. Her evidence gives an impression that

P.W.1 was a post occurrence witness.

From the cross-examination of P.W.5 (witness to the seizure of

farsha), it appears the deceased had disputes with others which prompted

him to repeatedly change his residence from Samatgaon to Barua and

finally to village Chotonarayanpur. Thus it cannot be said that the

appellants alone had inimical relationship with the deceased.

Recovery of the weapon of offence i.e. farsha also is also shrouded

in mystery.

P.W.10 (Shambhu Pal) first investigating officer of the case stated

that he recovered the offending weapon as per statement and instructions

of Basudev Roy and Sambhu Roy. No statement of the aforesaid accused

persons have been exhibited in the instant case.

P.W.5 (Ananda Sarkar) independent witness to the seizure stated

he signed on the seizure list on the direction of police. He does not

support the prosecution case that the offending weapon was recovered on

the showing of the aforesaid accused persons.

Finally it is argued during investigation Basudeb and Sambhu

threatened the witnesses while Nishi Sarkar and Ajoy Roy had

absconded. Mere abscondence of an accused by itself does not establish

guilt1. Admittedly the accused persons had inimical relationship with the

deceased. They had been named in the F.I.R. Out of fear the accused

persons may have run away. In the event the evidence of sole eye-witness

(P.W. 1) is discounted as improbable such abscondence by itself cannot

be the foundation of a finding of guilt against the appellants. Moreover,

the factor of abscondence had not been put to the appellants for

explanation during trial. Hence, it cannot be used against them. 2

With regard to the allegation of threats held out by the appellants

during investigation, I find that the evidence of P.W.1 in this regard is not

supported either by his mother (P.W.2) or aunt (P.W.6). It is also bereft of

material particulars with regard to the time when the appellants had held

out such threat. Even if such subsequent conduct is believed it would be

of little substance as I am unwilling to lend credence to P.W. 1 as an eye-

witness in the present case.

In the light of the aforesaid discussion, I am of the opinion

prosecution case primarily based on the sole evidence of P.W.1, an

inimical interested witness, whose presence at the place of occurrence

appears to be improbable has not been proved beyond reasonable doubt

and the appellants may be extended benefit of doubt.

In view thereof, they are acquitted of all the charges levelled

against them.

Matru Alias Girish Chandra Vs. State of Uttar Pradesh (1971) 2 SCC 75 Rahman Vs. State of U.P. AIR 1972 SC 110

Shamu Balu Chaugule Vs. State of Maharashtra (1976) 1 SC 438

The appellants shall be released from custody, if not wanted in any

other case, upon execution of a bond to the satisfaction of the trial court

which shall remain in force for a period of six months in terms of section

437A of the Code of Criminal Procedure.

The appeal is, accordingly, allowed.

In view of disposal of the appeals, connected application being

CRAN 3 of 2021 is also disposed of.

Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

Photostat certified copy of this judgment, if applied for, shall be

made available to the appellants upon completion of all formalities.

I agree.

(Bivas Pattanayak, J.)                            (Joymalya Bagchi, J.)




as/akd/sdas/PA (Sohel)