Anupam Banerjee vs The State Of West Bengal
2022 Latest Caselaw 6432 Cal

                                     1




                    IN THE HIGH COURT AT CALCUTTA

                     (Criminal Appellate Jurisdiction)

                              Appellate Side



Present:

The Hon'ble Justice Debangsu Basak

            And
The Hon'ble Justice Bibhas Ranjan De


                           C.R.A (DB) 4 of 2022
                                   With
                             CRAN 1 of 2022

                           Anupam Banerjee
                                   Vs
                        The State of West Bengal


For the appellant         :Mr. Jayanta Narayan Chatterjee, Advocate
                           Mr. Apalak Basu, Advocate
                           Ms. Moumita Pandit, Advocate
                           Mr. Nazir Ahmed, Advocate
                           Ms. Jayashree Patra, Advocate
                           Ms. Sreeparna Ghosh, Advocate
                           Mr. Riteshree Banerjee, Advocate
                           Mr. S. Koley, Advocate
                           Mr. Dipanwita Das, Advocate




For the State             :Mr. Saibal Bapuli, Advocate
                           : Mr. Bibaswan Bhattacharya, Advocate



Heard on                  : July 25, 2022
Judgment on               : September 09, 2022
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Bibhas Ranjan De, J.:-

  1.

This appeal is directed against the judgment an order

of conviction dated 22.12.2021 and 23.12.2021

passed by Ld. Additional Sessions Judge, Special

Court (EC Act), Alipur, South 24 Parganas in

connection with Sessions trial no. 209 of 2001 arising

out of Sessions case no. 71 (01) 2001 corresponding

to Chitpore Police Station Case no. 324/99 dated

30.09.1999 whereby Ld. Judge convicted the

appellant and sentence to suffer rigorous

imprisonment for life and to pay a fine of Rs. 10,000/-

and in default he was further sentenced to suffer

simple imprisonment for a period of 6 months for the

offence punishable under section 302 Indian Penal

Code (for short IPC).

Prosecution Case :

2. On 29.09.1999 at about 23:05/ 23:15 hours one

Narayan Chandra Roy (Constable no. 7042), after his

duty hours, boarded on a Double Dacker Trolly Bus

bearing no. WB- 04/2145 of route L-9A for reaching

his destination at Dunlop Police quarter, from

Shayambazar crossing. After boarding he noticed

altercation between some passengers including the

appellant and Surendra Prasad Gupta (victim) who is

also a co-resident of Shaymbazaar Police Quarter. He

also noticed that those passengers were trying to

assault victim and complainant tried to resist them.

Those passengers along with the appellant assaulted

both of them and abused in filthy languages.

Ultimately appellant kicked the victim standing on the

steps, with force and as a result of which both the

complainant and victim fell down from the running

bus. Victim sustained severe head injuries and he

was taken to R. G. Kar Medical College and Hospital,

Kolkata. Victim was admitted there for treatment and

complainant was discharged after primary treatment.

3. Complainant Narayan Chandra Roy visited Chitpore

Police Station and narrated all the incident to one

Sub Inspector, Kanchan Garai attached to the Police

Station recorded his statement and started Chitpore

PS Case No. 324/99 dated 30.09.1999 under 307/34

IPC. The then officer in charge of the Police Station

endorsed the said case to the Sub Inspector of Police,

Kanchan Garai, for investigation.

4. Immediately after assuming investigation

Investigating Officer (for short I.O) visited R. G. Kar

Medical College and Hospital but he could not record

the statement of victim who remained unconscious

and ultimately succumbed to his injuries on

30.09.1999 at about 2:45 a.m. After demise of victim

the case was converted to the offence punishable

under Section 302/34 IPC. In the midst of

investigation the case was transfer to Detective

Department Lalbazar. One sub Inspector Jayanta

Chakraborty attached to that department took up

investigation of this case and the case diary was

handed over to him.

5. On completion of investigation charge sheet was

submitted against accused/ appellants under Section

302/307/326/34 of IPC. Ld. Additional Chief Judicial

Magistrate, Sealdah committed the case to the Court

of Ld. Session Judge, South 24 Praganas, on

29.12.2000. Ld. Sessions Judge, thereafter,

transferred the case to the Court of Ld. Additional

Sessions Judge, Special Court (EC Act) for trial. Trial

began.

Findings of the Learned Judge:

6. On receipt of record Ld. Judge framed charge for the

offence punishable under Section 302 IPC against the

appellant and upon hearing the contents of the said

charge appellant pleaded not guilty and claimed to be

tried.

7. During trial 13 witnesses including complainant,

Narayan Chandra Roy, were examined on behalf of

the prosecution and a good number of documents

were admitted in evidence as exhibit 1 to 20. On

completion of evidence accused/ appellant was

examined under section 313 Code of Criminal

Procedure (for short Cr.P.C) where he pleaded his

innocence.

8. After appreciation the evidence available on record

and perusing the exhibited documents Ld. Judge

returned his finding of conviction of the

accused/appellant for the offence punishable under

Section 302 of IPC and sentenced him to suffer

rigorous imprisonment for life and also to pay a fine of

Rs. 10,000/- in default to suffer further simple

imprisonment for a term of six (6) months.

9. Being aggrieved by and dissatisfied with the said

judgment and order of conviction the instant appeal

has been preferred by the appellants, Anupam

Banerjee.

Evidence:-

10. Prosecution to bring home charge examined

following witnesses:-

Prosecution Name & Identification of the witness no. witness PW-1 Partha Roy (constable) who prepared the rough sketch map through a mechanical process (exhibit 1 series) PW-2 Narayan Chandra Roy (ASI) who sustained injury and lodged complain before police.

PW-3 Sushanta Kumar Misra (Inspector of Police) who being a traffic sergeant was posted at shaymbazar traffic guard on the alleged dated of incident.

PW-4 Snehangsu Chakraborty being an employee of Techni. Colour Studio put signatures (exhibit 4 /4/1) on the seizure list PW-5 Sanjiv Dey being an employee of Techni. Colour Studio, put his

signature (exhibit 4/2) on the seizure list PW-6 Dr. Achinta Gaiyan, Medical Officer attached R.G. Kar Medical College and Hospital, treated victim on 29.09.1999 at 11.30 p.m. PW-7 Dulal Mukherjee being ward master attached to Kolkata Police Hospital put his signature (exhibit 7/1) on the seizure list (exhibit-10) of bed head tickets in respect of PW-2.

PW-8 Nimai Pal being constable attached to Bhabanipur Police Station, put signature (exhibit

9) on the seizure list of duty register of Police Station.

PW-9 Utpal Saha being an employee of Calcutta electric supply corporation Limited, proved a letter dated 3.12.1999 issued by the then manger, system control of CSC Ltd.

PW-10 Sri Monjit Singh, the then Judicial Magistrate 6th Court Sealdaha, attached to conducted TI parade of the suspect (appellant) in the Alipur Central Correctional Home.

PW-11 Dr. Tapas kr. Bose, professor doctor, forensic medicine attached with NRS medical College and Hospital performed Post Mortem examination of the victim on 30.09.1999.

PW-12 Kanchan Garai, the then sub Inspector of Police attached to Chitpore Police Station initially took up investigation prior to

transfer of the case to CID PW-13 Jayanta Chakraborty, the then SI of Police, attached to Homicide Squad, Electric department, Lalbazar, took up further investigation of this case.

Argument:-

11. Mr. Jayanta Narayan Chatterjee, Ld. Advocate

appearing on behalf of the appellant has placed

following argument before this court:-

 Entire allegation, even if it is proved, the offence

will come within the purview of exception to Section

300 of IPC. Though there was an allegation of

scuffling but evidence available on record did not

suggest any requisite knowledge as well as culpable

intention to commit murder.

 During investigation no effort was taken by the

investigating agency to examine any witness who

was present in the attached Double Dacker Trolly

Bus at the relevant point of time as alleged.

 Considering the medical evidence it cannot be

understood that victim expired due to injuries

sustained on his person.

 In view of the evidence of prosecution witness (for

short PW) no. 2, 3 and 13 there is nothing to

establish participation of the appellant in any crime

alleged in this case. Though PW-2 and PW-3

claimed themselves to be witness to the occurrence

but PW-3 could not identify the appellant during

test identification parade unlike PW-2.

 Alleged brown colour bag was not seized by a

seizure list (exhibit 17) from the alleged bus. That

bag was seized from depot. There is no evidence to

link the chain between the bag and the appellant.

 In support of his contention Mr. Chatterjee has

relied on the following authority:-

 (2009) 14 Supreme Court Cases 541

(Mussauddin Ahmed v. State of Assam)

12. Mr. Saibal Bapuli, Ld. Advocate on behalf of the

State has referred to the evidence of PW-2 and

submitted that there is hardly any scope to disbelieve

the evidence of an injured witness (PW-2) and his

evidence was further corroborated by Prosecution

witness no. 3 and other medical evidence (PW-6, PW-

10 & PW-11). Accordingly Mr. Bapuli supported the

impugned judgment and submitted that conviction of

the appellant was strictly in accordance with law and

did not suffer from any illegality warranting inference

by this Court.

Evaluation:-

13. From the evidence of PW-2 it appears that on

19.09.1999 at about 10.45 p.m. he boarded on a

Double Decker Bus of route L/9. Thereafter, he

noticed altercation between a group of passengers

including the appellants and the victim, Surendra

Prasad Gupta who was a resident of Dunlop Police

Quarter. PW-2 being resident of same quarter

intervened as those passengers were abusing in slang

languages towards Police Department. As a result two

passengers and appellant assaulted him and victim

Surendra Prasad Gupta by first and blows. He then

came down from first floor of the bus and standing on

steps and victim was standing on the steps. In the

meantime appellant kicked the victim out of the bus.

Victim tried to catch hold of T-shirt of the witness and

both of them fell down from the bus. Immediately he

took the victim to R.G. Kar Medical College & Hospital

by a taxi, for treatment. He identified his signature

(exhibit 2/1 & 2/2) on the complaint (exhibit-2).

14. PW-3 in his evidence spoke of an incident of

altercation. On the relevant date he was Sergeant

posted at Shyambazar Traffic Guard. PW-2 also

claimed himself as Constable posted at Shyambazar

Traffic Guard. PW-3 testified that after hearing about

a disturbance at Shyambazar involving a Double

Decker bus he rushed to spot and noticed altercation

among the passengers and the bus was standing due

to traffic jam and that was the reason for annoyance

of passengers including 5/6 young persons who were

debating themselves. But he could not identify either

PW-1 or the victim as employee of Police Traffic

Guard.

15. From the evidence of PW-10 along with PW-2 &

3 it is seen that the appellant was identified by the

witnesses i.e PW-2 & PW-3 in the Test Identification

parade held by learned Magistrate (PW-10). From the

evidence of PW-3 it appears he saw the altercation

among the passengers of a Double Decker bus at

Shyambazar crossing in same tune of PW-2 who also

stated about the subsequent incident of kicking

victim out of the bus at Chunibabur bazaar, by the

appellant. PW-10 proved the memo of Test

Identification Parade (exhibit -10).

16. Therefore, evidence of PW-2, PW-3 and PW-10

clearly established the place and time of altercation

alleged in this case and participation of appellant as

well.

17. PW-2 (complainant) has deposed that the

appellant kicked victim out of the bus and as a result

both PW-2 and victim fell down from the bus. Both of

them sustained injury. PW-2 sustained injury on his

leg and victim on his head. Then PW-2 took the victim

immediately to R.G. Kar Medical College and Hospital

by a taxi.

18. PW-6 (doctor) squarely corroborated the evidence

of PW-2. PW-6 accurately stated the incident as

narrated by the PW-2 regarding assault and kick out

of a bus of route L/9. On 29.09.1999 PW-6 attended

injured at R. G. Kar Medical College and Hospital at

11.30 p.m. He treated both the victim and PW-2. His

reports in respect of two injured persons were

admitted as (exhibit 5& 6). From the evidence of PW-6

and injury report (exhibit -5) show that victim was

unconscious and he was referred to operation theater

due to his serious head injury. Ultimately the victim

succumbed to his injury and dead body was Post

Mortem by PW-11 who opined that death was caused

by head injuries found in course of Post Mortem.

Cross-examination of PW-11 has further fortified the

alleged incident of falling on the road from the

running bus. That apart, evidence of PW-7 shows

seizure of bed head tickets under a seizure list

(exhibit-7) from Kolkata Police Hospital. PW-7 being

an employee of that hospital put his signature

(exhibit-8)

19. PW-8 deposed that I.O (PW-12) seized duty

register of Bhowanipore Police Station in his presence

he put his signature on the seizure list (exhibit-9).

20. PW-12 (First I.O of this case) has deposed he

visited R.G. Kar Medical College and Hospital to

record statement of victim but could not as he

remained unconscious and ultimately succumbed to

his injuries. He conducted inquest (exhibit-13) over

the dead body of Surendra Prasad Gupta (victim of

this case). He recorded statement of available witness

under Section 161 Cr.P.C. He seized wearing apparels

of injured (PW-2) under a seizure list (exhibit 3/1). He

collected death certificate (exhibit 14) of the victim.

21. Thereafter, this case was transferred to C.I.D

West Bengal for further investigation PW-13 took up

further investigation of this case on 07.10.1999.

During investigation he visited place of occurrence

and on 12.10.1999 sent requisition to R.G. Kar

Medical College and Hospital wherefrom he collected

bed head tickets of deceased Surendra Prasad Gupta

and seized under a seizure list (exhibit 72 collectively).

He seized duty register of Bhowanipore Police Station

under a seizure list (exhibit-9). He collected

photographs of involved bus and seized (exhibit 4

series). He seized one brown colour bag with some

documents from Central Traffic Office at 45 Ganesh

Ch. Avenue Kolkata -13, under a seizure list (exhibit

17 series) in presence of witnesses.

22. In fact following clue from those documents

(exhibit-17) and from source information PW-13 could

arrest the appellant on 02.11. 1999 at 14:30 hours

under a memo of arrest (exhibit 19).

23. After rummaging through the entire evidence of

witnesses such as PW-2, PW-3, PW-6, PW-10,PW-

11,PW-12 and PW-13 we find hardly any substantial

contradiction to create any reasonable doubt in the

mind of this Court with regard to commission of crime

by the involvement of the appellant.

24. Mr. Chatterjee raised the issue of latches on the

part of Investigating Officer (PW-12 & PW-13) who

could not examine the conductor of the bus who is

the best witness of this case and the documents

alleged to have been recovered by the seizure list

(exhibit-17) have not ever been produced in course of

trial to prove the proximity between the appellant and

the offence alleged in this case. Thereby Mr.

Chatterjee has persuaded this Court to take

assistance of adverse inference within the meaning of

Section 114 Illustration (g) of the Evidence Act 1872

by virtue of ratio of Mussauddin Ahmed (supra).

25. Views of Mussauddin Ahmed (supra) is as

under:

"10. So far as the question of age of the prosecutrix is concerned, PW.1 Dr Pratap Ch. Sarma who had examined her, opined that she was 18 years of age. According to the prosecutrix she was only 13 years of age at the time of incident. PW.2 Abdul Hai Laskar, informant, deposed that prosecutrix was 13/14 years of age. However, PW.3 Mrs. Hasmat Ara Begum kept silence on this point. There is nothing on record to show as on basis, PW.2 Abdul Hai Laskar had given her age. It appears very unnatural as none of the family members of the prosecutrix comes to the scene. Her parents or either of them or any other family member could be most reliable and natural witness on the point of her age. PW.2 Abdul Hai Laskar, in his examination-in-chief stated as under: "Later the girl's mother came and took her away. At present she is staying with her parents." Thus, it cannot be assumed that prosecutrix did not have parents or other family members. Prosecution for the reasons best known to it examined her employer PW.2 Abdul Hai Laskar and his wife PW.3

Hasmat Ara Begum but did not examine any of her family member on the point of age.

11. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413)."

26. In Mussauddin Ahmed (supra) Hon'ble Apex

Court came across an allegation of rape where

determination of age of the prosecutrix was an issue

to be determined. But prosecutrix could not produced

any documents and also could not examine either

parents of the prosecutrix or any of family members.

In these circumstances, Hon'ble Court suggested

drawing an adverse inference under Section 14

Illustration (g) of the Evidence Act.

27. Sorry, we are unable to draw any such

presumption in our case where injured (PW-2) has

given evidence and that evidence was further

corroborated by other witnesses (PW-3, PW-6 and PW-

10 to PW 13). We have already discussed that

evidence of injured (PW-2) remained unshaken.

28. Evidence of an injured, as per settled law, must

be given due weightage being a stamped witness,

thus, his presence at the scene of crime cannot be

doubted. His statement is generally considered to be

very reliable, and it is unlikely that he has spared the

actual assailant in order to falsely implicate someone

else. From that point of view appellants objection to

procedural irregularities such as, in our view, non-

examination of public witness and non production of

any document to prove the link between recovered

bag and the appellant, does not make any difference

to the prosecution case. In fact the testimony of an

injured witness has its own relevancy and efficacy as

he has sustained injuries at the time and place of

occurrence and this lends support to his testimony

that he was present during the occurrence.

29. In view of above, it is difficult to comprehend the

circumstances in which the charge of killing Surendra

Prasad Gupta (victim of this case) against the

accused/appellant cannot be leveled. Thus, learned

Judge has rightly found the appellant guilty of killing

Surendra Prasad Gupta.

Sentence:-

30. Mr. Chatterjee, alternatively, took the plea that it

was a case of culpable homicide within the scope of

Section 300 Exception V I.P.C for which the sentence

of life imprisonment being maximum is

disproportionate. It is submitted that the evidence

available on record, at best, discloses a case of

culpable homicide not amounting to murder.

31. Section 300 Exception IV IPC for ready reference

is reproduced hereunder:-

"[s 300] Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

(Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

(Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is

likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid

Exception 1.- Culpable homicide is not murder if the

offender, whilst deprived of the power of self-control

by grave and sudden provocation, causes the death

of the person who gave the provocation or causes the

death of any other person by mistake or accident.

The above exception is subject to the following

proviso:-

First.- That the provocation is not sought or

voluntarily provoked by the offender as an excuse for

killing or doing harm to any person.

Secondly.- That the provocation is not given by

anything done in obedience to the law, or by a public

servant in the lawful exercise of the powers of such

public servant.

Thirdly.- That the provocation is not given by

anything done in the lawful exercise of the right of

private defence.

Explanation.- Whether the provocation was grave and

sudden enough to prevent the offence from

amounting to murder is a question of fact.

Exception 3.- Culpable homicide is not murder if the

offender, being a public servant or aiding a public

servant acting for the advancement of public justice,

exceeds the powers given to him by law, and causes

death by doing an act which he, in good faith,

believes to be lawful and necessary for the due

discharge of his duty as such public servant and

without ill-will towards the person whose death is

caused.

Exception 4.- Culpable homicide is not murder if it is

committed without premeditation in a sudden fight in

the heat of passion upon a sudden quarrel and

without the offender having taken undue advantage

or acted in a cruel or unusual manner.

Explanation.- It is immaterial in such cases which

party offers the provocation or commits the first

assault.

Exception 5.- Culpable homicide is not murder when

the person whose death is caused, being above the

age of eighteen years, suffers death or takes the risk

of death with his own consent."

32. In our case, there was an incident of altercation

and assault between the appellant and victim. In

course of altercation injured (PW-2) intervened but

appellant assaulted both of them and ultimately

kicked the victim to throw out of the bus. As a result

both the injured and victim fell down from the bus

and victim succumbed to his head injuries on the

next day at R.G. Kar Medical College and Hospital.

33. Therefore, fact before us does not lead us to any

doubt that the appellant did have knowledge of the

fatality of the injury after falling down from the

running bus but the sudden provocation and fighting

suppressed the element of intention. Thus, in our

view, benefit of Section 304 part II ought to have been

accorded by the learned trial Court.

34. For the reason recorded above, the conviction of

the appellant under Section 302 of IPC is modified as

conviction under Section 304 part II of IPC and

substantive sentence of life imprisonment is reduced

to sentence of rigorous imprisonment for 10 years and

also to pay a fine of Rs. 50.000/- in default to suffer

further rigorous imprisonment for one (1) year.

35. Fine amount, if realised, be given to the family of

the victim.

36. Learned trial with issue modified jail warrant to

the superintendent of Correctional Home where the

appellant will be lodged.

37. Let a copy of this judgment along with the trial

Court record be transmitted back forthwith.

38. All pending applications, if any, stand disposed of

accordingly.

39. Appellant, if on bail, shall surrender before the

learned trial Court forthwith to serve sentence.

40. All parties shall act on the server copies of this

judgment duly downloaded from the official website of

this Court.

41. Urgent Photostat certified copy of this order, if

applied for, be supplied expeditiously after complying

with all necessary legal formalities.

[BIBHAS RANJAN DE, J.]

42. I Agree.

[DEBANGSU BASAK, J.]