Calcutta High Court (Appellete Side)
Anil Mandal vs The State Of West Bengal & Ors on 18 January, 2023
1
THE HIGH COURT AT CALCUTTA
Criminal Miscellaneous Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRA 92 of 2020
Anil Mandal
Vs.
The State of West Bengal & Ors.
For the Appellant : Mr. Aniruddha Singh, Adv.
Mr. Avishek Bhandari, Adv.
Mr. Hemanda Kr. Das, Adv.
Mr. Nepesh Majhi, Adv.
For the Respondent : Mr. S.S. Roy, Adv.
Nos. 2 to 8 : Mr. Santanu Banaerjee, Adv.
: Mr. Pronojit Roy, Adv.
For the Respondent : Mr. Sandipan Ganguly, Ld. Sr. Adv.
No. 9 Mr. Bihash Kr. Mukherjee, Adv.
Mr. Sourav Kr. Mukherjee, Adv.
Ms. Manaswita Mukherjee, Adv.
Mr. Niladri Chakraborty, Adv.
For the State : Mr. Saswata Gopal Mukherjee, Ld. PP
Mr. Sandip Chakraborty, Adv.
Hearing Concluded on : January 10, 2023
Judgement on : January 18, 2023
DEBANGSU BASAK, J.:-
1. The appeal was directed against the judgment and
order of acquittal dated November 28, 2019 passed by the
learned Additional District and Sessions Judge, Fast Track
Court, Rampurhat, Birbhum in Sessions Trial No. 44/
September, 2018 arising out of Case No. 77 of 2018.
2. By the impugned judgement and order the
respondents Nos 2 to 9 were acquitted of the charges under
Sections 325/304/149 of the Indian Penal Code, 1860.
3. Learned Advocate appearing for the appellant
submitted that, the prosecution examined 5 witnesses at the
trial. Out of the 5 witnesses, 2 were injured eyewitnesses. He
submitted that, some persons received injuries in the incident
and one person died.
4. Learned advocate appearing for the appellants
submitted that, PWs 1, 2 and 5 saw the incident of assault on
the victims. According to him, the prosecution witnesses
established beyond reasonable doubt the involvement of the
respondent Nos. 2 to 9 in the crime.
5. Referring to the Post Mortem Report, learned advocate
appearing for the appellant submitted that, such Post Mortem
Report was marked as an Exhibit without any objection on the
part of the respondent Nos. 2 to 9. The Post Mortem Report
established that the person concerned suffered injuries. The
injuries noted were the cause of death. PWs 1 and 2 identified
the respondent Nos. 2 to 9 as the persons involved in the
assault on such victim. The respondent Nos. 2 to 9 are more
than 5 in number. Therefore, the respondent Nos. 2 to 9 were
guilty of culpable homicide not amounting to murder. In
support of such contention, he relied upon 1993 Supp (2)
Supreme Court Cases 356 (Sarman And Others Vs. State
of M.P).
6. Learned advocate appearing for the appellant
submitted that, non-examination of the post mortem doctor
was not fatal to the case of the prosecution. He submitted
that, the genuineness and authenticity of the Post Mortem
Report was proved and should be treated as valid evidence
under Section 294 of the Criminal Procedure Code. The Post
Mortem Report was tendered in evidence and marked as
Exhibit. The respondent Nos. 2 to 9 did not object to the
tender of the Post Mortem Report in evidence.
7. Since the Post Mortem Report established that, the
victim died out of the injuries suffered, and since the
prosecution witnesses established that the respondent Nos. 2
to 9 were involved in the assault, according to him, the
prosecution established beyond reasonable doubt the
commission of the crime of culpable homicide not amounting
to murder by the respondent Nos. 2 to 9.
8. Learned advocate appearing for the appellant
submitted that, the respondent Nos. 2 to 9 are to be held
guilty under Section 394 Part II of the Indian Penal Code,
1860.
9. Learned advocate appearing for the State submitted
that, the State did not prefer any appeal against the impugned
judgement and order of acquittal.
10. Learned advocate appearing for the respondent Nos. 2
to 8 submitted that, the appeal was directed against an order
of acquittal. According to him, when two views are possible in
the facts and circumstances of a case, the view taken by the
learned Trial Judge should not be upset particularly when, the
impugned judgement and order was one of acquittal. In any
event, when two views were possible, the one which favoured
the accused should be adopted.
11. Referring to the oral testimony of PW 1, learned
advocate appearing for the respondent Nos. 2 to 8 contended
that, PW 1 cannot be said to be an eyewitness to the incident.
He submitted that, 3 persons were injured. One of such
persons being Fatick Konai was not examined by the
prosecution.
12. Referring to PW 2 and his testimony, learned advocate
appearing for the respondent Nos. 2 to 8 submitted that,
although, PW 2 claimed himself to be injured, injury report of
PW 2 was not tendered in evidence. Therefore, the testimony
of PW 2 that, he was an injured eyewitness, is not reliable.
Once a portion of testimony is found to be unreliable the other
portion of testimony should also to be suspected.
13. Learned advocate appearing for the respondent Nos. 2
to 8 submitted that, the scribe of the written complaint was
not examined. The Investigating Officer was not examined.
The doctor conducting the post mortem on the deceased was
also not examined. Non examination of such vital witnesses
was fatal to the case of the prosecution.
14. PW 5 claimed himself to be an injured witness
although, no injury report was produced. The weapons of
assault were not recovered.
15. Referring to the oral testimonies of the prosecution
witnesses, he submitted that, the respondent No. 7 was not
stated to be present at the place of occurrence at all.
16. Learned advocate appearing for the respondent Nos. 2
to 8 highlighted the contradictions between the contents of the
written complaint and the oral testimony of PW 1.
17. Learned Senior advocate appearing for the respondent
No. 9 submitted that, PW 5 was not stated to be injured in the
written complaint although, in the oral testimony, PW 5
claimed that she was injured.
18. Learned Senior advocate appearing for the respondent
No. 9 submitted that, the Investigating Officer was not
examined. It did not come on record as to whether, any of the
prosecution witnesses recorded any statements under Section
161 of the Criminal Procedure Code or not. According to him,
there was divergence in the narration of events between the
contents of the First Information Report and the testimonies of
the prosecution witnesses. Even between the prosecution
witnesses, there were variations of the incident in their oral
testimonies.
19. Learned Senior advocate appearing for the respondent
No. 9 submitted that, it cannot be said that the impugned
judgement and order of the learned Trial Judge was perverse.
Therefore, the question of taking a contrary view, more so,
when the view expressed by the learned Trial Judge was the
plausible view, does not arise.
20. Police registered a First Information Report on August
17, 2003 inter alia under Sections
147/148/149/323/325/304 of the Indian Penal Code, 1860
on the basis of a written complaint of the PW 1 being Exhibit
1. Police filed a charge sheet against the respondent Nos. 2 to
9. Charges were framed against the respondent Nos. 2 to 9.
They pleaded not guilty and claimed to be tried.
21. According to the prosecution, the respondent Nos. 2 to
9 in furtherance of the common object of voluntarily causing
grievous hurt to Sudhir Das, Fatik Konai, Dhiren Das and
Uttam Mandal, assaulted them and therefore committed an
offence punishable under Sections 325/45 of the Indian Penal
Code, 1860 on August 15, 2003. The respondent Nos. 2 to 9
in furtherance of the common object of committing culpable
homicide not amounting to murder by causing the death of
Sudhir Das committed an offence punishable under Sections
304/149 of the Indian Penal Code, 1860. The respondent Nos.
2 to 9 assaulted Sudhir Das, Fatick Konai, Dhirendranath
Das and Uttam Mandal on August 15, 2003 at about 8 A.M.
Due to such assault, Sudhir Das, Fatick Konai,
Dhirendranath Das and Uttam Mandal suffered grievous hurt
and Sudhir Das succumbed to his injuries.
22. At the trial, prosecution examined 5 witnesses. The
prosecution tendered 5 documentary evidence which were
marked as Exhibit 1 to 4.
23. PW 1 stated in his deposition that, the incident took
place on August 15, 2003 at about 8 A.M. The respondent
Nos. 2 to 9 were constructing a house forcefully. He came out
of his house upon hearing the hue and cry and saw the
respondent Nos. 2 to 9 to be assaulting Sudhir Das,
Birendranath Das, Habu Das , Sridhar Mondal, Uttam
Mandal, Fatick Konai and Taposh Das. According to him,
other victims also sustained injuries. He took the injured
persons to the Nalhati Police Station. Thereafter, he took the
injured persons to hospital. Fatick Konai and Sudhir Das were
referred to Rampurhat Sub-divisional Hospital but Fatick
Konai did not go to Rampurhat Sub-Divisional Hospital.
Sudhir Das was referred to NRS Medical College, Calcutta
from Rampurhat Hospital.
24. PW 1 lodged the written complaint which was marked
as Exhibit 1. He was interrogated by the police. He identified
the respondent Nos. 2 to 9 excepting Srikumar Nandi who
was dead. In his cross-examination, PW 1 stated that, he
did not mention in his written complaint that, after hearing
the hue and cry, he came out from his house. He
acknowledged that there was no mason or labour at the place
of occurrence.
25. PW 2 claimed himself to be injured in the assault.
According to him, the respondent Nos. 2 to 9 were raising
construction. The respondent Nos. 2 to 9 became furious and
started assaulting him and others with wooden stick and iron
rod. He stated that, Fatick Konai, his brother Sudhir Das who
died and himself were injured. He made a telephone call to the
police at the time of the incident. On receipt of such phone
call the police came to the place of occurrence. PW 2 stated
that, he went to the police station along with Sudhir Das
when, the police seeing the injured condition of Sudhir Das
asked Sudhir Das to be taken to the hospital. He stated that,
when the police came to the village the accused persons fled
away from the place of occurrence. He narrated the incident to
the police at the place of occurrence. He took Sudhir Das to
Nalhati Hospital where he was treated and referred to
Rampurhat Hospital. On the next day, Rampurhat Hospital
referred Sudhir Das to NRS Medical College and Hospital,
Calcutta. On August 17, 2003, Sudhir Das expired at NRS
Medical College and Hospital about 4:10 A.M.
26. In cross-examination PW 2 stated that at the time of
the incident about 20/25 persons of the locality were present.
Six police personnel came to the village after receiving his
phone call. The police went to the house of the accused
persons for searching. During such, police did not recover the
wooden sticks or iron rod or any other weapon from the house
of the accused persons. He could not say who assaulted the
deceased on his head. He did not find some of the accused at
the hospital. He stated that, at the time of the incident, PW 1
was in his house. He acknowledged that he was an accused in
a criminal case filed by the accused persons against him.
27. PW 3 claimed that he cannot say anything about the
incident as he was not present at the place of occurrence. He
was declared hostile by the prosecution. On cross-
examination by the prosecution, he denied that he was
examined by the police. In cross-examination by the defence,
he claimed that the there was no enmity between him and the
deceased or his brother.
28. PW 4 also claimed that he was not present at the time
of the incident. He was declared hostile by the prosecution.
On cross-examination by the prosecution, he denied making
any statement to the police. In cross-examination by the
defence, he denied that there was any enmity between him
and the deceased.
29. PW 5 claimed that, the incident occurred at about 8
o'clock in the morning. The accused persons were making
construction which she along with others tried to stop. To
that, the accused person started assaulting with iron rod,
wooden sticks and crowbar. As a result of such assault, the
deceased sustained bleeding injury on his head. Other
persons also sustained injuries. She did not go to hospital or
to any doctor for any treatment. The deceased was taken to
the police station from where he was taken to the hospital.
She did not go to the police station with the deceased. She
identified the accused persons in court.
30. In cross-examination she denied that, PW 1 assaulted
Srikumar Nandi on the head. She denied the suggestion that,
Srikumar Nandi died as a result of the assault. She stated
that there was no mason and labour engaged for the
construction work. According to her, about 30/40 persons
were present at the time of the incident. She could not say
who brought the police to the village. She stated that the
police came to the village at about 1/1:30 PM. There were no
bricks at the place of occurrence. She could not say whether
the police saw blood at the place of occurrence. According to
her, there was no blood stain on the clothes of the injured
persons.
31. The accused persons were examined under Section
313 of the Criminal Procedure Code where they claimed their
innocence and to be falsely implicated. They denied to adduce
any defence witness.
32. The learned trial judge framed two issues at the trial.
The issues were, whether the accused persons committed any
offence under Sections 325/304/149 of the Indian Penal
Code, 1860 and whether the prosecution was able to prove the
guilt of the accused persons beyond reasonable doubt.
33. The learned trial judge evaluated the evidence led at
the trial. According to him, it was not clear from the evidence
which accused assaulted whom. He noted that, there were
eight accused persons at the same time. He noted that,
according to PW 1 there were eight persons who were
assaulted by the accused persons. None of the prosecution
witnesses including the injured persons could say who
assaulted them and by whom was the deceased assaulted.
According to him, it remained doubtful as to who caused
injury to whom. He noted that, all the eight victims did not
suffer injuries. He held that, since there were eight alleged
assailants, eight victims and three injured and since there was
no evidence who assaulted whom, neither of the accused can
be held accountable for the injuries to the above persons. He
noted that, there was no medical evidence about the injuries
of PW 2 and 5. The doctor who examined them was not cited
as a witness. Therefore, whether they actually sustained any
injury remained doubtful. The post-mortem doctor was not
examined. Nor was the doctor who examined the deceased at
the emergency was examined as witness. The absence of
cross-examination of the opinion of the post-mortem doctor
also persuaded the learned judge to acquit the accused. He
noted that, the prosecution witnesses were not present at the
time of death of the deceased and as such their evidence of
the death of the deceased as a result of the assault could not
be accepted. He found that, there was no conclusive evidence
that the accused persons caused grievous injuries or culpable
homicide not amounting to murder to any of the victims and
as such acquitted them.
34. The private respondents being acquitted by the learned
Trial Judge one must bear in mind that there was double
presumption in their favour. First was the presumption of
innocence and second was the securing of acquittal. However,
a judgement of acquittal can be reversed in the appeal if the
judgement suffered from the vice of perversity. A judgement of
acquittal can be said to be perverse if the finding of fact
returned was arrived at by ignoring or excluding relevant
material or taking into consideration irrelevant or
inadmissible or extraneous materials or the findings defied
logic or were irrational. The impugned judgement and order
was required to be tested on such anvil.
35. In Sarman and Others (supra), the Supreme Court
on evaluation of the evidence, found that, nobody stated
which of the assailants caused particular injury which
resulted in the death of the deceased. It was also found that,
since the accused inflicted injuries with wooden stick and
particularly when such injuries were simple and at non vital
parts of the body, it cannot be said that the object was to kill
the deceased. Accordingly, the conviction of the accused
under Section 302/149 of the Indian Penal Code, 1860 was
set aside and the accused were convicted under Section 304
II/ 149 of the Indian Penal Code, 1860.
36. In Akhtar And Others (supra), Medical Officers were
not examined. The Post Mortem Examination Report was
however, tendered and marked as Exhibit at the trial. It was
held that, if genuineness of any document filed by a party is
not disputed by the opposite party it can be read as
substantive evidence under Section 294 of Sub-Section 3 of
Criminal Procedure Code.
37. In the facts of the present case, out of 5 witnesses,
who claimed themselves to be eye witnesses, PW 1 claimed to
come out of his residence upon hearing the hue and cry and
seeing the private respondents assaulting the deceased and
others. PW 2 as the injured eye witness stated in cross-
examination that PW 1 was in his house at the time of the
incident. Therefore, the veracity of the evidence of PW 1 as an
eye witness was put to doubt at the behest of PW 2.
38. PW 2 who claimed himself to be an injured eye
witness, did not produce any document to substantiate his
injury at the trial. It is therefore doubtful as to whether PW 2
was injured in the incident in absence of corroborating
medical evidence particularly given the nature of the incident
and the nature of assault that the prosecution witnesses
claimed.
39. PW 5 claimed that the private respondents started to
assault her also with iron rod, wooden stick, crowbar. She
also did not produce any injury report of any injury being
suffered by her. According to her, PW 2 also suffered injury. In
cross-examination she stated that there was no blood stain on
the clothes of the injured persons. As noted above the claim of
injury suffered by PW 2 was not corroborated by any Doctor
examining him or any injury report. The claim that PW 5 was
injured was also not corroborated by medical evidence.
40. According to PW 5 the incident occurred when she
along with others went to stop the construction of the accused
persons. She stated that no mason or labour was engaged by
the accused persons. There was no brick at the place of
occurrence. PW 2 and PW 5 stated that there were 20 to 40
local people present at the place of occurrence. None came
forward at the trial to implicate any of the accused.
41. It transpires from the evidence of the prosecution
witnesses that, two persons died. One of them was Sudhir Das
and the other was Srikumar Nandi. PW 5 denied the
suggestion that Srikumar Nandi died as a result of the
assault. She however, admitted seeing Srikumar Nandi at the
place of occurrence.
42. The version of the prosecution witnesses with regard to
the incident is that, the private respondent assaulted the
deceased, Birendranath Das, Habu Das , Sridhar Mondal,
Fatick Konai and Taposh Das. However, it appears from the
suggestions put and the admissions made in cross-
examination of the prosecution witnesses that, there was
dispute with regard to the land with the family of Nandi.
Srikumar Nandi, Prabir Nandi, Subir Nandi and Mihir Nandi
were involved in the incident.
43. The doctor who conducted the post mortem on the
victim was not examined at the trial. The Post Mortem Report
being Exhibit 4 stated that the death was due to the effects of
head injury ante mortem and homicidal in nature. However,
the prosecution witnesses were unable to establish who
caused the head injury to the deceased.
44. The learned Trial Judge on evaluation of the evidence
held that, there was no conclusive evidence as against the
accused person. At the trial, the prosecution sought to weave
a chain of events so as to press home the charges. However,
the evidence led at the trial left sizeable swathe to
accommodate legitimate skepticism as to the veracity of the
testimonies of the prosecution witnesses. The view of the
learned Trial Judge being a plausible one in the facts and
circumstances of the present case, we accept the same.
45. The respondent Nos. 2 to 9 were acquitted of the
charges they were charged with. We uphold the judgement
and order of acquittal. They shall, however, furnish a bail
bond to the satisfaction of the trial Court which shall continue
for six months from date in terms of Section 437A of the
Criminal Procedure Code.
46. In view of the discussion above, CRA 92 of 2020 is
dismissed.
47. Trial Court records along with a copy of this judgement
and order be sent down at once to the appropriate Court for
necessary action.
48. Photostat certified copy of this order, if applied for, be
given to the parties on priority basis on compliance of all
formalities.
[DEBANGSU BASAK, J.]
49. I agree.
[MD. SHABBAR RASHIDI, J]
