Debdut Bagdi vs State Of West Bengal
2022 Latest Caselaw 6538 Cal

Item No. 31




                      IN THE HIGH COURT AT CALCUTTA
                      CRIMINAL APPELLATE JURISDICTION
                             APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Ajay Kumar Gupta

                             C.R.A. 404 of 2018

                                Debdut Bagdi
                                       -Vs-
                             State of West Bengal


For the Appellant        :     Mr. Asimes Goswami, Adv.
                               Mr. Satyen Banerjee, Adv.
                               Ms. Shubhra Banerjee, Adv.
                               Ms. Priyanka Dutta, Adv.
                               Ms. Paulomi Banerjee, Adv.
                               Ms. Monalisa Maity, Adv.

For the State            :     Mr. Avishek Sinha, Adv.


Heard on                 :     09.09.2022 & 14.09.2022

Judgment on              :     14.09.2022


Joymalya Bagchi, J. :-

         Appeal is directed against the judgment and order dated

17.05.2018

and 18.05.2018 passed by the learned Additional District

and Sessions Judge, Fast Track Court, Suri, Birbhum in Sessions Trial

No. 04/March/2016 arising out of Sessions Case No. 157 of 2015

convicting the appellant for commission of offence under Section 302 of

the Indian Penal Code and sentencing him to suffer rigorous

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

suffer further imprisonment for six months.

Prosecution case levelled against the appellant is to the effect

that on 22.06.2014 in the morning Jagannath Bagdi, the deceased, and

his wife Sukhi (PW 1) went to the residence of their daughter, Rita

Bagdi (PW 3) at village - Agulia. Around 5.00P.M. Debdut Bagdi,

appellant herein, (grandson-in-law of Jagannath Bagdi) came to the

house of Rita Bagdi and started quarreling with his wife, Saiba Bagdi

(PW 2). He was in an inebriated state. Family members of the appellant

were contacted but they did not turn up. Finally, the appellant was

sent back to his house. At night Jagannath was sleeping in a motor van

in the courtyard of the house. Appellant being armed with a thick stick

(dung) came to the house and struck him. He was chased by Rita Bagdi

and went to the roof. On the roof, son of the appellant, Dulchand Bagdi

(PW 8) and his cousin, Jagannath Bagdi (PW 11) were sleeping. He

assaulted Jagannath Bagdi. Dulchand and Jagannath apprehended the

appellant. He was tied by a rope to a post. PW 1 lodged written

complaint at the police station resulting in registration of Dubrajpur

Police Station Case No. 114 of 2014 dated 23.06.2014 under Sections

302/34 of the Indian Penal Code against the appellant and two others.

In conclusion of investigation, charge-sheet was filed against the

appellant alone. Charge was framed under Section 302 of the Indian

Penal Code. Appellant pleaded not guilty and claimed to be tried. To

prove its case prosecution examined 18 witnesses. Defence of the

appellant was one of innocence and false implication. In conclusion of

trial, learned trial Judge by the impugned judgment and order

convicted and sentenced the appellant, as aforesaid.

Mr. Goswami, learned Counsel for the appellant argues the

prosecution case suffers from patent improbabilities and/or

inconsistencies. A prior intimation had been given to the police before

registration of F.I.R. PW 4 (Sk. Abul Khayer), scribe, stated police came

to the place of occurrence before his arrival. Hence, written complaint

lodged by PW 1 is not the earliest information received by police with

regard to the incident. This intimation has not been produced before

the Court. He further submits description of the incident in the F.I.R.

militates with the evidence of the prosecution witnesses. While in the

F.I.R. it is alleged appellant along with Bipad Taran Bagdi and

Monchora Bagdi had come to the house at night, in Court the de-facto

complainant (PW 1) and other witnesses stated appellant came to the

place of occurrence alone. Evidence of the prosecution witnesses with

regard to the manner and circumstances in which the incident

occurred is contradictory while most of the witnesses claimed they had

apprehended the appellant at the spot after the incident and had

handed him over to the police, investigating officer (PW 18) does not

support their version. PW 18 deposed he had apprehended the

appellant from his village - Utadda and not the place of occurrence

which completely demolishes the prosecution case. Hence, prosecution

has failed to prove its case beyond reasonable doubt. Appellant is

entitled to an order of acquittal.

Mr. Sinha, learned Counsel for the State, submits P.Ws 1,2,3,8

and 11 were present at the house when the incident occurred. All the

witnesses stated in unison appellant had assaulted the deceased and

upon being chased went to the roof of the house and assaulted

Jagannath Bagdi (PW 11). Their depositions are corroborated by other

post occurrence witnesses viz. PWs. 9,10 and 12 who saw the appellant

at the place of occurrence. Postmortem doctor, Dr. Debasis Sarkar (PW

14) opined appellant had a fracture on his scalp which was ante

mortem and homicidal in nature. Evidence of PW 18 with regard to the

arrest of the appellant at a different place ought not to be a ground to

disbelieve the consistent ocular evidence of other prosecution

witnesses.

I have considered the evidence on record in the light of the rival

submissions.

PW 1 is the de facto complainant and wife of the deceased. She

deposed she along with her husband had come to the residence of her

daughter, Rita Bagdi on the fateful day. In the evening appellant had

come to the residence of Rita and misbehaved with his wife Saiba, her

granddaughter. They sent the appellant back. In the night, her

husband was sleeping in a motor van which was parked in the

courtyard of the house. Around 1.00 A.M. appellant came with lathi

and hit her husband on the head. Thereafter he went to the roof and

assaulted his son and nephew. They raised hue and cry. Appellant was

apprehended at the spot and handed over to the police. She lodged

complaint which was scribed by PW 4.

In the F.I.R. PW 1 (Sukhi Bagdi) stated appellant had come

along with two others viz. Bipad Taran Bagdi and Monchora Bagdi. She

also stated she had been sleeping inside the room when the incident

occurred. However, in court she altered her version and claimed she

was sleeping in the veranda and appellant had come to the house

alone. In view of such contradiction in her deposition with regard to the

place where she was sleeping in the night, I am unable to rely on her as

an eye-witness to the incident.

PW 2 (Saiba Bagdi) is granddaughter of the deceased and wife of

the appellant. She deposed in the evening of the fateful day appellant

had come to the house and misbehaved with her. At night she had gone

to the residence of one of her relations, Mantu Bagdi. Hearing hue and

cry she returned to her house and found that her grandfather was dead

and appellant had been apprehended. Hence, PW 2 is also not an eye-

witness to the incident.

PW 3 (Rita Bagdi) is the daughter of the deceased. She stated

deceased was sleeping in the courtyard of her house. She was sleeping

with her mother inside the room. At night appellant came to the house

and hit her father with a log on the head. She saw the incident and

chased the appellant. He escaped to the roof and assaulted Jagannath

Bagdi (PW 11). They informed police who came to the spot and arrested

the appellant.

Apparently, PW 3 appears to be an eye-witness. However, deeper

scrutiny of her evidence would show she was sleeping inside the room

with her mother. Her father Jagannath Bagdi was sleeping in a motor

van which was parked in the courtyard of the house. There is nothing

on record to show that PW 3 who was sleeping inside the house would

be able to see an assault on the victim who was sleeping in a motor van

in the courtyard. During cross-examination, in a desperate bid PW 3

tried to change her version and stated she was sleeping in the veranda.

I am unable to subscribe to this prevaricating stance of PW 3 to portray

herself as an eye-witness.

Other two inmates of the house are PW 8 (Dulchand Bagdi) and

PW 11 (Jagannath Bagdi). Both of them were sleeping on the roof and

there is no chance of the said witnesses having seen the assault on the

deceased.

From the aforesaid analyses of the evidence of the prosecution

witnesses, I am of the view none of the inmates of the house had seen

the actual assault on the deceased. However, all of them claimed the

appellant was found inside the house and upon being chased went to

the roof where he was apprehended by Dulchand Bagdi and Jagannath

Bagdi. Immediately thereafter F.I.R. was lodged at the police station

and police came to the spot and apprehended the appellant. This

aspect of the prosecution case also suffers a fatal blow from the

deposition of the investigating officer (PW 18) himself.

PW 18 (SI Santosh Bhakat) deposed upon receipt F.I.R. he went

to the place of occurrence and seized blood stained earth and controlled

earth. He prepared inquest report and forwarded the dead body for

postmortem examination. He is completely silent about the presence of

the appellant at the spot. On the other hand, he deposed appellant was

arrested from his village at Utadda and upon his interrogation a lathi

was recovered.

I have examined the memorandum of arrest of the appellant

which is a part of the record. From the memorandum of arrest it

appears that the appellant had been arrested from village Utadda on

23.06.2014 at 18.45 hours. This completely demolishes the prosecution

case that the appellant had been apprehended at the place of

occurrence and upon arrival of police was handed over to the officer.

Mr. Sinha, learned Counsel for the State argues this variation is a

defect in investigation and ought not affect the consistent version of the

prosecution witnesses. I am not unmindful of the fact that remissness

or defect in investigation would not affect the credibility of a

prosecution case if the same is otherwise well-founded on legally

admissible evidence. However, if the evidence of an investigating officer

vitally contradicts the very unfolding of the prosecution case relating to

presence and apprehension of the accused at the place of occurrence, it

goes to the very root of the case. This irreconcilable contradiction in

the prosecution case is palpable and casts serious doubt on the

credibility of the prosecution witnesses particularly inmates of the

house who claimed they had seen the appellant and apprehended him

at the spot.

Other aspects of the prosecution case also suffers from various

infirmities. It is unclear why PW 1 had implicated not only the

appellant but two others in the F.I.R. Police had arrived at the spot

even prior to the lodging of F.I.R. These issues remain unanswered and

adversely impact the truthfulness of the prosecution case.

All was not well between the appellant and his wife Saiba Bagdi.

In the evening he had come to the residence of PW 3 and quarreled with

her. Though such enmity may be the motive to commit the crime, it is

apposite to bear in my mind that motive is a double edged sword. It can

also prompt the family members of Saiba to implicate the appellant out

of mere suspicions. In this factual matrix, possibility of false

implication of the appellant due to his earlier conduct cannot be wholly

ruled out.

In the light of the aforesaid discussion, I am inclined to extend

the benefit of doubt to the appellant and acquit him of the charge

levelled against him. Conviction and sentence of the appellant is set

aside.

Appellant shall be forthwith 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.

Lower court records along with copies of this judgment be sent

down at once to the learned trial court for necessary compliance.

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

made available to the appellants upon completion of all formalities.

I agree.

(Ajay Kumar Gupta, J.)                            (Joymalya Bagchi, J.)




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