Calcutta High Court (Appellete Side)
Nitai Das vs State Of West Bengal on 25 November, 2022
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. 378 of 2017
Nitai Das
-Vs-
State of West Bengal
With
C.R.A. 354 of 2017
Mithun Chakraborty & Anr
-Vs-
State of West Bengal
With
C.R.A. 431 of 2017
Kaushik Saha @ Huko
-Vs-
State of West Bengal
with
C.R.A. 505 of 2017
Shankar Sahani
-Vs-
State of West Bengal
2
with
C.R.A. 73 of 2019
Raju Kar @ Animesh Kar
-Vs-
State of West Bengal
For the Appellants : Mr. Sabir Ahmed, Adv.
Mr. Mujibar Ali Naskar, Adv.
Mr. Apan Saha, Adv.
Mr. Sharman Sarkar, Adv.
Mr. T Ahmed, Adv.
... in CRA 378/17
Mr. Debabrata Roy, Adv.
Mr. Prabir Majumder, Adv.
Mr. S Majumdar, Adv.
Ms. Sarbani Mukhopadhyay, Adv.
... in CRA 354/17
Mr. Soubhik Mitter, Adv.
Mr. Litan Maitra, Adv.
Ms. R Das, Adv.
... in CRA 431/17,
CRA 505/17 & CRA 73/19
For the State : Mr. N Ahmed, Ld. APP
Ms. Z N Khan, Adv.
Ms. Amita Gaur, Adv.
... in CRA 378/17
Mr. M Sur, Adv.
Mr. D Paramanick
... in CRA 354/17
Heard on : 30.03.2022, 31.03.2022, 06.04.2022,
28.04.2022 & 11.11.2022
Judgment on : 25.11.2022
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Prosecution case:-
Sub Inspector Prosenjit Kar of Nakashipara Police Station received
information, one dead body was lying at Gacha Ghosh Para. He diarized the
information and proceeded to the spot. He photographed the dead body. One
Ratan Ghosh (P.W. 1) lodged a written complaint which was scribed by one
Asim Dey P.W. 20 (Exhibit - 1/A). It was alleged therein on 18.08.2013 at
10:15 p.m. Ratan noticed the dead body of a 26 year old man wearing read
ganji and jeans trousers lying in front of the house of Sukumar Das (P.W. 5).
He found blood oozing from the throat of the body. He suspected deceased
had been murdered elsewhere and had been dumped at the said spot for
erasing evidence. Nobody could identify the deceased. On the basis of
aforesaid written complaint, Nakashipara Police Station Case No. 681/13
dated 19.08.2013 was registered for investigation under sections 302/201 of
the Indian Penal Code against unknown persons.
P.W. 22, Prosenjit Kar was entrusted with the investigation. He
prepared inquest report (Exhibit - 2/2). He prepared sketch map with index
(Exhibit - 12). He sent the dead body for post mortem examination.
Subsequently, investigation of the case was transferred to S.I. Animesh Dey
(P.W. 17). He examined witnesses and published photograph of the deceased
but his identity could not be ascertained. Finally on 30.09.2014, S.I. Bivas
Sen (P.W. 18) submitted FRT (final report as true) before the Magistrate. On
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receipt of final report, learned Magistrate issued notice upon the de-facto
complainant to respond to the result of investigation.
After a year, one Sujat Sk (P.W. 6) lodged a written complaint at
Nakashipara Police Station, inter alia, alleging one Shankar Sahani, Jeker
Sk and Abdul Karim told him that two years ago Nitai Das and his
associates had murdered a person. On Nitai's instructions, they had
disposed of the body at Gacha Ghosh Para in an ambulance. They
anticipated this incident would come out as Nitai had been arrested. This
fact was diarized in G.D. Entry No. 993 dated 14.09.2015.
Two days later, de-facto complainant of the case, that is, Ratan Ghosh
(P.W. 1) filed protest petition before the Magistrate. Learned Magistrate
directed re-investigation of the case. Pursuant to such direction, S.I. Surajit
Ghosh (P.W. 19) resumed further investigation of the case.
In the course of further investigation, S.I. Surajit Ghosh examined
parents and wife of the deceased. Wife identified the photograph of the
deceased, namely, Anil Paswan.
On 10.09.2015, he arrested Shankar Sahani, Jeker Sk, Abdul
Karim Sk and Rajesh Sk in connection with this case.
On 21.09.2015, he arrested Taslim Sk and interrogated Nitai
Das in custody.
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On 23.09.2015 he prayed for showing Nitai Das arrested by the
police. In the course of investigation, on 24.09.0215 investigating
officer recovered an ambulance bearing No. WB-04D 2712 on the
disclosure statement of Shankar Sahani (Exhibit - 10).
On the self same day he prayed for interrogation of Mithun
Chakraborty, Biltu Acharya @ Anupam Acharya and Babai Sk (P.W.
15) who were in jail custody in other cases.
On 26.09.2015, he forwarded Shankar Sahani for recording his
judicial confession under section 164 Cr.P.C. Shankar Sahani declined
to make any confession.
On 06.10.2015, he forwarded Sujat Sk (P.W. 6) before the
Magistrate for recording his confession. Sujat Sk stated he is being
pressurized by police officers attached to Kotwali Police Station and
Nakashipara Police Station to make false statement as per their
dictation. Accordingly, he declined to make statement. This fact was
recorded in the order dated 06.10.2015 by the learned Magistrate.
Learned Magistrate directed Superintendent of Police to look into the
matter. On the self same day, Babai Sk (P.W. 15) was interrogated by
investigating officer, S.I. Surojit Ghosh (P.W. 19).
On 09.10.2015, prayer was made to record the statement of
Babai Sk before the Magistrate under section 164 Cr.P.C. On the self
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same day, Mithun Chakraborty and Biltu Acharya @ Anupam Acharya
were shown arrested in the case. On 14.10.2015, statement of Babai
Sk was recorded before the Magistrate. Finally on 30.11.2015, S.I.
submitted charge-sheet against 11 accused persons including the
appellants.
Case was committed to the Court of Sessions and charges were framed
against the appellants and five others for commission of offence under
sections 302/34 and 201/34 I.P.C.
To prove its case prosecution examined 22 witnesses and exhibited a
number of documents.
Most of the witnesses including the de-facto complainant Ratan Ghosh
(P.W. 1), Sujat Sk (P.W. 6) and parents of the deceased Anil Paswan, namely,
Ram Sakal Paswan (P.W. 9) and Full Paswan (P.W. 10) and his wife Buchia
Paswan (P.W. 11) were declared hostile. Prosecution primarily relied on the
evidence of Babai Sk (P.W. 15) and the disclosure statement of Shankar
Sahani (Exhibit - 10) leading to the recovery of the ambulance which was
used to carry the dead body to prove its case.
Upon analysis of the aforesaid evidence, the trial Judge by the
impugned judgment and order dated 29.03.2017 and 30.03.2017 convicted
the appellant for commission of offence punishable under section
302/201/34
I.P.C. and sentenced them to suffer imprisonment of life and to
pay a fine of Rs.10,000/-, in default, to suffer rigorous imprisonment of two
years for the offence punishable under section 302/34 I.P.C. and to suffer
rigorous imprisonment for three years and to pay a fine of Rs. 5,000/-, in
default, to suffer rigorous imprisonment for one year for the offence
punishable under section 201/34 I.P.C. Both the sentences to run
concurrently.
By the self same judgment, co-accuseds Jeker Sk, Abdul Karim Sk,
Rajesh Sk, Taslim Sk and Osman Sk were acquitted.
Evidence on record:-
P.W. 1, Ratan Ghosh is the first de-facto complainant. He turned
hostile. He deposed he did not lodge F.I.R. but admitted his signature on the
F.I.R. and inquest report. He also stated he did not submit petition before
the Magistrate. P.W. 20, scribe of the complaint, proved the complaint
(Exhibit - 1/A) which had been treated as F.I.R.
P.W. 2, Mithun Das (nephew of Sukumar Das), P.W. 4, Uttam Ghosh
and P.W. 5, Sukumar Das deposed they saw a dead body lying in front of the
house of Sukumar Das.
P.W. 3, Sridam Das and P.W. 7, Santosh Das deposed they heard a
dead body was lying in front of the house of Sukumar Das. None of the
witnesses were, however, able to identify the body.
P.W. 6, Sujat Sk, though a vital witness for the unfolding of the
prosecution case, turned hostile. He deposed he did not lodge any complaint
with police. He identified the accused persons. He was declared hostile and
was cross-examined with regard to the contents of the written complaint
purportedly lodged by him.
Relations of the deceased Anil Paswan have also been declared hostile
and have not supported the prosecution case.
P.W. 9, Ram Sakal Paswan and P.W. 11, Buchia Paswan are parents of
the deceased. They stated they were unaware how the deceased was
murdered.
P.W. 10, Full Paswan, wife of the deceased also did not support the
prosecution case and was declared hostile.
P.W. 14, Dr. Anirban Jana conducted the post mortem over the dead
body of the deceased. He deposed the victim had died due to shock from
haemorrhage from gun shot injury, ante mortem in nature. Death had
occurred 24 hours prior to the incident. He also deposed he found a bullet
which was handed over to the investigating officer.
Babai Sk (P.W. 15), however, supported the prosecution case. He
deposed a football match was organized at Bowbazar Arabinda Math at
Krishnagar. He was drinking with his friends. Mithun and others came and
sat near the spot, after sometime Anil came. Thereafter, Mithun Chakraborty
gestured to Raju Kar. Raju held Anil by the collar and dragged him. Biltu put
an arm around his back and threatened him. Raju, Biltu, Huko, Shankar
and Mithun left the spot with Anil around 12:30 p.m. They returned to the
spot with Nitai around 3:30 p.m. P.W. 15 noticed blood marks on the face of
Nitai. Nitai wiped the marks with water. On query, Mithun told him that they
had done away with Anil. Nitai wanted to murder one Bappa Singh @ Banga.
By mistake he murdered his mother. Anil helped Banga to escape. Anil had
also objected to Nitai extorting people in the nearby railway godown. Hence,
Nitai nursed a grudge against Anil and murdered him. Mithun told P.W. 15
Nitai had bit Anil on the throat causing injury. Thereafter, Anil was taken to
a tin shed. Others strangulated him. Then he was shot on the throat. His
dead body was disposed of by Shankar Sahani in his ambulance. Around
5:00 p.m., P.W. 15 went to the tin shed and saw the dead body. In cross-
examination, he stated there were 4-5 friends with him when Mithun
disclosed the incident. Two days later, he wanted to go to police but was
threatened. He was arrested in 2013 but did not disclose the incident to
police.
P.W. 16, Bappa Singh @ Banga did not support P.W. 15 regarding the
motive of crime. He stated his mother was murdered by Babai Sk and his
associates.
P.Ws. 17 to 19, 21 and 22 are the police witnesses.
P.W. 21, Utpal Ghosh received the written complaint lodged by Ratan
Ghosh and drew up the formal F.I.R. He commenced the investigation on the
complaint.
P.W. 17 and P.W. 18 are the second and third investigating officers.
P.W. 18 submitted final report.
P.W. 19 resumed further investigation on 16.09.2015, pursuant to the
order of Magistrate. He sought to prove the written complaint lodged by
Sujat Sk (Exhibit - 6 with objection) and the General Diary lodged by one
Gokul Chandra Majumdar (Exhibit - 7 with objection). He arrested the
accused persons. Pursuant to the statement made by Shankar Sahani
(Exhibit - 10), he recovered ambulance bearing No. WB-04D 2712 from the
garage of Susanta Mondal (P.W. 13) in the presence of P.W. 12, Parimal
Pramanik under a seizure list (Exhibit- 3/2), P.Ws. 12 and 13 are signatories
to the seizure list. He recorded the statement of Babai Sk. Subsequently, he
forwarded Babai Sk for recording statement under section 164 Cr.P.C.
Homicidal death of Anil Paswan: whether proved:-
From the evidence of prosecution witnesses particularly P.Ws. 2, 4 and
5 it is proved in the night of 18.08.2013, dead body of a male person with
bleeding injuries on the throat was found in front of the house of Sukumar
Das (P.W. 5). Upon receipt of information, S.I. Prosenjit Kar (P.W. 22)
attached to Nakashipara Police Station proceeded to the spot and saw the
dead body. He prepared inquest report and sent the body for post mortem
examination. P.W. 14, Dr. Anirban Jana, post mortem doctor deposed the
deceased had died due to shock from haemorrhage from gun shot injuries
which were ante mortem and homicidal in nature. He found bullet head in
the larynx/trachea of the deceased. He deposed death was 24 hours prior to
post mortem examination. Opinion of the doctor leaves no doubt that the
victim whose body was recovered in front of the house of Sukumar Das (P.W.
5) had suffered homicidal death. Investigating officer (P.W. 19) deposed
parents and wife of the deceased were shown the photograph of the deceased
and the wife identified the same as that of Anil Paswan. This fact has not
been challenged in cross-examination by the defence. Hence, I hold the
homicidal death of Anil Paswan is proved.
Babai Sk (P.W. 15) - whether a reliable witness:-
The moot question is who murdered Anil Paswan?
As most of the prosecution witnesses had turned hostile, prosecution
essentially hinges on P.W. 15, Babai Sk to establish the culpability of the
appellants in the murder.
Learned lawyers for the appellants have strenuously argued Babai Sk
is an unreliable witness. There is inordinate delay in recording his
statement. It is unclear as to why the witness remained silent for two years
and did not disclose the incident to police in 2013. In 2015, while he was in
judicial custody in other cases, he is alleged to have made statement to
police on 06.10.2015 and, thereafter before Magistrate on 14.10.2015. His
deposition in Court with regard to the incident particularly the extra-judicial
confession of Mithun Chakraborty suffers from patent contradictions and/or
improbabilities. There are striking deviations between his version in Court
and that before the Magistrate. Hence, the witness ought not to be believed.
On the other hand, learned Counsel for the State argues Nitai Das was
a dreaded criminal in the locality. Out of fear, everyone remained silent till
he was arrested. Thereafter, Sujat Sk lodged complaint disclosing the fact
that Shankar Sahani had stated to him that the appellants had murdered
Anil Paswan and, thereafter, his body was taken away in an ambulance and
dumped at a different place. Though Sujat Sk (P.W. 6) was declared hostile,
his written complaint and the corresponding General Diary have been
exhibited as Exhibits - 6 and 7 respectively. These materials, opinion of the
post mortem doctor (P.W. 14) and the seizure of the ambulance on the
disclosure statement of Shankar Sahani corroborate the evidence of Babai
Sk (P.W. 15).
Babai Sk (P.W. 15) deposed Anil Paswan was taken away by the
appellants from the football field. Thereafter, they returned and Mithun
Chakraborty told him, Nitai and others had murdered Anil in a nearby tin
shed out of previous grudge. Shankar Sahani had taken away the body in
his ambulance and dumped it elsewhere. Babai went to the tin shed and saw
the body.
Let me examine the credibility of this witness on the factual matrix of
the case.
Firstly, I note there is unexplained delay in recording the statement of
Babai Sk. Even if one acknowledges the argument of Mr. Ahmed that owing
to fear of Nitai Das, Babai had kept silent about the incident for more than
two years, it is inexplicable why there is delay of about two weeks in
examining Babai Sk during further investigation when he was in judicial
custody in other cases.
Perusal of the order-sheet of the case shows prayer for examination of
Babai Sk (who was in judicial custody in connection with another case) was
allowed on 23.09.2015. Strangely, the witness was not examined till
06.10.2015. No explanation is offered by the prosecution for such delay. On
the other hand, a disturbing coincidence transpires from the records of the
proceeding with regard to such delayed examination. It may not be out of
place to note that on 06.10.2015 itself investigating agency had forwarded
the other vital witness Sujat Sk (P.W. 6) to record his confessional statement
under section 164 Cr.P.C. Before the learned Magistrate, Sujat Sk
complained he had been threatened by police attached to Kotwali Police
Station and Nakashipara Police Station to make tutored statement as per
their dictations, failing which he would be implicated in other cases.
In the order dated 06.10.2015, learned Magistrate noted the aforesaid
disturbing feature as follows:-
"Record is placed before me to record the statement of witness
Sujat Sk. The witness Sujat Sk is produced by Constable Bikash
Mondal of Nakashipara. Witness Sujat Sk S/o Md. Ali Sk told that he
has no knowledge of any incident relating to this case. He also told that
the police of Kotwali PS and Nakashipara PS are pressurizing him to
state some manufactured facts as per their own words with fear of
impleading the witness in other criminal cases. He told "Kotwali thanar
police Nilu Ghosh bolechen je tumi amader koktha moto statement na
bolle ganja case ba murder case a fasiye debo. Police amake akdin
thanai sararat hajote atke rekhechilo. Nilu Ghosh amar barite ratri belai
giye dorjai lathi mere prochur voi dekhai. Sir amar jano kono khoti na
hoi. Amake policer ottyachar they bachan." (vernacular)
In a republic with the principle of welfare of people on the basis
of rule of law, with the principle of emancipation of dignity of all
individual, such illegal act is unbelievable.
Due to want of voluntariness of the witness and due to his
ignorance of facts of the case, the statement cannot be recorded.
I proposed before the Ld. A.C.J.M. that the Superintendent of
Police may be requested to look into the matter for restoration of human
rights and individual liberty of the said person.
Place the record before the Ld. A.C.J.M., Krishnagar for further
order."
After Sujat Sk had refused to buckle down to police pressure, on the
self same day, the investigating officer, Surajit Ghosh (P.W. 19) turned his
attention on Babai Sk (who was in judicial custody in another case) and is
said to have recorded his incriminating statement. Subsequently, his
statement was recorded before the Judicial Magistrate.
These peculiar circumstances surrounding the recording of statement
of Babai Sk, P.W. 15 cast serious doubt on the fairness of investigation and
exacerbate the impact of unexplained delayed examination on the credibility
of the said witness.
Secondly, to test the intrinsic truth of his version, I have gone through
the entire deposition of Babai Sk (P.W. 15). His deposition suffers from
inherent contradictions and is at variance from his earlier statement before
the Magistrate on material particulars.
While before the Magistrate P.W. 15 stated Anil Paswan had been
called by Mithun to the spot, in Court he deposed Anil had come to the field
on his own. During his deposition, P.W. 15 claimed Mithun and others had
forcibly taken away Anil from the spot at 12:30 p.m. but before the
Magistrate he was silent with regard to use of force and stated Anil left with
the appellants (apart from Nitai) around 2:00-2:30 p.m. Presence of blood
stains on the face of Nitai after they had returned to the spot is also an
embellishment which is singularly absent in his statement before the
Magistrate.
With regard to the extra-judicial confession made by Mithun to P.W.
15 there are patent improbabilities. In Court, P.W. 15 stated that Mithun
told him that they had murdered Anil and his body had been removed by
Shankar Sahani in an ambulance. After hearing such statement he went to
the tin shed and found dead body lying there. This is a patent contradiction.
Had the body been already removed as per the extra-judicial confession, how
could P.W. 15 thereafter find it lying in the tin shed? In fact, in his
statement before Magistrate P.W. 15 had come out with a different version.
He had contended a couple of days after the incident Mithun had informed
him about the removal of the dead body. This is not only in stark
contradiction to his deposition in chief but is improbabilised by his
admission during cross-examination that two days after the incident when
he was going to the police station to report the matter, he was threatened by
the associates of Nitai. If P.W. 15 had been seen going to the police station to
report the incident by associates of Nitai, it is highly unnatural that Mithun
would rely on such a person and make further incriminating statement to
him. Babai Sk (P.W. 15), therefore, does not appear to be a wholly reliable
witness and conviction ought not be recorded on his version alone.
Hence, I have made an endeavour to seek corroboration of his version
from other sources but in vain. No investigation was made by the police with
regard to the so-called football match organized on the fateful day. No other
member of the club was examined. Though Babai Sk claimed Mithun made
extra-judicial confession when 4-5 other friends were present, none of them
have been examined. Motive to commit the crime as narrated by Babai is not
corroborated by Bappa Singh @ Banga (P.W. 16).
I am also unable to accept the submission of Mr. Ahmed that the
written complaint by Sujat Sk or the corresponding General Diary has been
proved. During cross-examination, Sujat Sk (P.W. 6) was not confronted with
the said document. Maker of the General Diary, namely, Gokul Chandra
Majumdar was also not examined. Even if such documents are held to be
proved, they cannot be treated as substantive evidence as the maker of the
complaint, namely, Sujat Sk resiled from the said complaint and was
declared hostile. Hence, there is hardly any legally admissible evidence
corroborating the evidence of Babai Sk who does not appear to be a reliable
witness.
Transportation of dead body from the first place of occurrence, i.e., tin
shed to the second place of occurrence, i.e, in front of the house of
Sukumar Das in the ambulance of Shankar Sahani:-
There is no direct evidence that the ambulance bearing No. WB-04D
2712 was used to carry the dead body of the deceased from the first place of
occurrence to the second place of occurrence. Evidence of Babai Sk with
regard to the disclosure made by Mithun on this score is wholly unreliable.
Sujat Sk (P.W. 6) has also not supported the prosecution case and resiled
away from the contents of his complaint to police.
In this backdrop, disclosure statement of Shankar Sahani (Exhibit -
10) resulting in the recovery of an ambulance from the garage of P.W. 13 by
itself cannot prove this part of the prosecution case. Moreover this
incriminating fact was not posed to any of the appellants including Shankar
Sahani during their examination under section 313 Cr.P.C. Failure to do so
disentitles the Court from relying upon this incriminating material to come
to a finding of guilt against the appellants.
In the light of the aforesaid discussion, I am constrained to hold the
prosecution case has not been proved beyond doubt. The appellants are
entitled to an order of acquittal.
Conviction and sentence recorded against the appellants are
accordingly, set aside.
Appeals are allowed.
The appellants shall be released from custody forthwith, 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.
Lower court records along with a copy of this judgment be sent down
at once to the learned trial Court for necessary action.
Photostat certified copy of this judgment, if applied for, be given to the
parties on priority basis on compliance of all formalities.
I agree.
(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)
PA
