Rajkumar Tewari & Ors vs The State Of West Bengal
2023 Latest Caselaw 1821 Cal

            IN THE HIGH COURT AT CALCUTTA
           CRIMINAL APPELLATE JURISDICTION
                    APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
         And
The Hon'ble Justice Md. Shabbar Rashidi


                         C.R.A.170 of 2021

                  Rajkumar Tewari & ors.
                           VS.
                 The State of West Bengal


For the Appellants   :      Mr. Milon Mukherjee, Sr. Advocate
                            Mr. Dattatreya Dutta,
                            Ms. Leena Mukherjee,
                            Mr. Prateep Bera

For the State        :      Mr. Ranabir Roy Chowdhury,
                            Mr. Mainak Gupta

Hearing concluded on :      20.03.2023


Judgement on :              20.03.2023


DEBANGSU BASAK, J.:-

1.   The appeal is directed against the judgment of conviction

dated February 20, 2021 and order of conviction dated

February 23, 2021, passed by the learned Additional District
                                2



and Sessions Judge, First Fast Track Court, Lalbagh, in

Sessions Trial No.3/September/2017 arising out of Sessions

Serial No.131 of 2017.


2.    By the impugned judgment of conviction, the appellants

were convicted under Sections 302/34, 307/34 and 325/34 of

the Indian Penal Code, 1860.

3.    Police received a written complaint dated April 29, 2017.

Such written complaint was submitted by prosecution witness

(P.W.2). In such written complaint it was stated that since the

brothers of P.W.2 did not return to their home as usual

around 9 to 9:30 p.m., the family became worried. He could

not speak to the victims over mobile. At about 11 p.m. P.W.2

along with few other persons went to the brick factory by two

motor cycles thinking that the two persons would be in the

factory. When they reached near the government unmetalled

road they found that two persons were lying besides the road.

They examined one victim and found him dead while the other

victim was tremendously injured. They came to know from the

injured victim that while returning home at around 9 to 9:30
                                 3



p.m. on motor cycle, they were stopped by the appellants who

assaulted them violently with wooden rod and killed one of

them in a preplanned conspiracy and ran away. They took the

injured victim to the hospital for treatment. As his condition

was not good, doctor referred him to the Medical College &

Hospital. His condition was critical as his hands and ribs were

fractured.

4.   In the written complaint, it was also stated that, there

was an old dispute with the appellants regarding business and

property and out of old grudge, the appellants attacked the

victims in a planned way.

5.   On the basis of such written complaint, police registered

a First Information Report being Murshidabad Police Station

F.I.R. No.220 of 2017 dated April 29, 2017 under Sections

325/307/302/34 of the Indian Penal Code, 1860.

6.   On conclusion of the investigation, police submitted

charge-sheet. Charges under Sections 325/34, 307/34 and

302/34 of the Indian Penal Code, 1860 were framed as against

the appellants on September 11, 2017. The appellants pleaded

not guilty and claimed to be tried.
                                4



7.   At the time of trial, prosecution examined 19 witnesses.

Prosecution also relied    upon various     documentary      and

material exhibits to prove the charges beyond reasonable

doubt.

8.   Learned Senior Advocate appearing for the appellants

submits that, the prosecution was unable to prove the charges

beyond reasonable doubt. He draws attention of the Court to

the Post Mortem Report of the deceased and to the deposition

of the Post Mortem Doctor. He submits that Post Mortem

Doctor was unable to say conclusively as to whether the death

was homicidal or suicidal or accidental in nature. He submits

that in absence of the Post Mortem Doctor classifying the

death of deceased to be homicidal, it was inappropriate for the

learned trial Judge to consider the case as one of murder.

9.   Learned Senior Advocate appearing for the appellants

submits that, the injured eyewitness, P.W.5 in his deposition,

during cross-examination, as many as on two occasions,

stated that there was an accident at the material point of time.

Therefore, he submits that, the death and the injuries were a
                                 5



result of accident. At least, the appellants were entitled to the

benefits of doubt.

10.   Moreover, learned Senior Advocate appearing for the

appellants submits that, the prosecution did not examine any

eyewitness to the incident. From the tenor of the deposition of

the prosecution witnesses, presence of any eyewitness was

ruled out. The maker of the written complaint arrived at the

spot much after the occurrence of the incidence. He refers to

the initial recording in the injury reports of the injured and

submits that, the claim of assault by the appellants should be

disbelieved.

11.   Learned Senior Advocate appearing for the appellant

submits that the most of the prosecution witnesses are

relatives of the victims. Therefore, there are possibilities of

such prosecution witnesses, exaggerating the incident. He

relies upon All India Reporter 1984 Supreme Court 1622

(Sharad Birdhichand Sarda vs. State of Maharashtra)

and 2011 (14) Supreme Court Cases (Jalpat Rai And

Others. Vs. State of Haryana) 208 in support of his

contention.
                                6



12.   Learned Senior Advocate appearing for the appellants

refers to the deposition of the so-called injured eyewitnesses.

He submits that such injured eyewitness named another

person to be present in the place of occurrence. Such person

was not examined by the prosecution. He relies upon 1976 (4)

Supreme Court Cases 355 (Ishwar Singh vs. State of U.P.)

and (2014) 14 Supreme Court Cases 22 (Deny Bora vs.

State of Assam) in support of his contention.

13.   On the aspect of non examination of vital witnesses

relying upon 2022 Supreme Court Cases Online Suprem

Court 991 (Khem @ Khem Chandra EPC vs. State of U.P.)

learned Senior Advocate for the appellants submits that oral

testimony can be classified into three categories. According to

him in the fact and circumstances of the present case, the oral

testimony does not support the case of the prosecution and

ought to be disbelieved.

14.   Learned Senior Advocate appearing for the appellants

submits that consequently, the appellants should be acquitted

of the charges as framed against them.
                               7



15. Learned Advocate appearing for the State draws the

attention of the Court to the evidences of the prosecution

witnesses. He submits that, despite the post-mortem doctor

not classifying the death as homicidal, the nature of injuries

suffered by the victim should be considered by the Court.

According to him, the nature of injuries suffered by the

deceased are such that, the only plausible conclusion is that,

the victim was murdered. He submits that, the wooden batten

was recovered on the leading statement made by one of the

appellants. Such wooden batten was used in the incident of

assault. The injuries   suffered   by   the   two   victims   are

commensurate with an assault by a wooden batten on the two

victims. Therefore, according to him, the charges against the

appellants stood prove beyond reasonable doubt.

16. The scribe of the written complaint deposed as P.W.1. He

stated that he was a practicing advocate for the last four

years.   The written complaint was prepared by him in his

handwriting as per the instructions of P.W.2. The contents of

the complaint was read over by him and explained in Bengali

to P.W.2 and after understanding the contents thereof, P.W.2
                                8



put his signature therein.    P.W.1, also signed the written

complaint.   The written complaint was tendered in evidence

and marked as Exhibit-1.

17.   P.W.2 is a brother of the two victims.   He stated that

Abdul Saddique and Nazle Ahamed, P.W.5 herein, were in a

business of brickklins. For such business purpose, they used

to return home at about 9 to 9.30 P.M. after day's work in the

brickfield. On the fateful night, both of them did not return

home in time. The family members became restless. In such

a situation, he, accompanied by other persons in two separate

motorcycles went out of the house in search of the victims. He

identified the others persons accompanying him as Sahajamal

Sk, Faruk Ahamed and Samsul Alam, P.W.10, all from the

same village.   As they were proceeding towards the brickfield

they reached near the house of one of the appellants and

availed the unmetalled road leading to a brickfield towards

south.   When they reached near the mango grove of Prithvi

Tewari, they saw the victims lying on the earth with serious

bleeding injuries on their persons.     They got down from

motorcycles. On seeing that, there was no movement of Abdul
                               9



Siddique, P.W.2 apprehended that he was dead by that time.

The other brother Nazle Ahamed, P.W.5, was lying on the

unmetalled road.    He was alive but was in almost dead

condition.   The injured brother was picked up by them and

taken on motorcycle to Lalbag Sub-Divisional Hospital.    The

attending doctor immediately referred him to the Medical

College & Hospital at Berhampore. He saw both the hands and

chest ribs of Nazle Ahamed, P.W.5, to be broken. On the same

date, he came to know that the police reached the place of

occurrence and with them people of the village subsequently

brought the dead body of Abdul Siddique to Lalbag Sub-

Divisional Hospital. The doctor of the Lalbag Sub-Divisional

Hospital declared Abdul Siddique as dead on the same date.

18. P.W.2 stated that over the incident, he lodged the written

complaint against the appellants. He identified his signature

on the written complaint which was marked as Exhibit-1/1.

He was a witness to the inquest of Abdul Siddique. He

identified his signature on the inquest report which was

marked as Exhibit-2.
                               10



19. Police prepared a seizure list in which he signed.   Such

signature was marked as Exhibit-3. Police seized the wearing

apparels of the deceased brother on April 30, 2017 in his

presence. He identified his signature on the seizure list which

was marked as Exhibit-4.

20. He identified all the appellants in Court. He stated that

Pradip Tewari and Sumit Tewari were not present in Court

room.    He stated that he came to know the name of the

appellants from the mouth of the injured victim. He identified

the material exhibits.

21. In cross-examination, P.W.2 stated that, on the date of the

incident of murder, in the night, police met with him on the

spot.   He stated before the doctor at the time of admission

about how the incident occurred, to the attending doctor of the

injured brother, Nazle Ahamed.

22. In further cross-examination, he stated that, he asked his

injured brother as to what happened, whereupon the injured

brother narrated that while the injured brother and Abdul

Siddique were returning home from the brickfield, the

appellants intercepted them on the unmetalled road and
                                 11



assaulted them. The injured brother told him that six persons

assaulted them with wooded batten causing injuries to them.

23. A police constable deposed as P.W.3.         He stated that, on

April 30, 2017, a seizure was made of two wooden battens on

the indication of Ramnath Tewari.          He identified the seizure

list dated April 30, 2017 which was marked as Exhibit-5. He

identified the seized articles in Court.

24. The police constable who witnessed the seizure of the

wearing apparels of the deceased on April 30, 2017 deposed as

P.W.4. He identified his signature on such seizure list which

was marked as Exhibit-4/1.           He also identified the seized

wearing apparels.

25. P.W.5 is an injured eye-witness. He stated that, as he and

deceased were returning home from the brickfield he was

driving the motorcycle and the deceased was pillion rider with

him. At about 9 to 9.30 P.M., all of a sudden the appellants

came in front of the motorcycle and stopped them. Then they

left and right started assaulting them with wood batten. As a

result of such assault, they sustained serious injuries. He was

almost unconscious and unable to move. The deceased also
                                 12



received serious injuries. After some time, the son Farooque

Ahmed, his brother Abdus Samad, P.W.2. and others came

there.     From them, he came to know that Abdul Siddique

expired.     He was brought to the Lalbagh Sub-Divisional

Hospital for treatment.       Thereafter, he was referred to

Berhampore Medical College & Hospital where he remained

admitted for about 8/9 days.

26. P.W.5. stated that, at the spot he discussed with P.W.2

and his son about the incident.          He claimed that on the

relevant date and time he was assaulted by the appellants.

He identified the appellants in Court.

27. In cross-examination, he stated as follows:

                 "On the relevant day coming from the brick
              field, we came just up to about 200-300 meter
              away only and then we sustained injuries due to
              accident and wherein my brother died.
                 .....................................................................

........................................................................ ........................................................................ The accident took place at about 9pm to 9.30pm at night."

28. P.W.6 is the hearsay witness. He heard about the incident

from the mouth of the local people. His deposition apparently

does not add any substance to the case of the prosecution.

29. P.W.7 is a neighbour. He stated that, there was a long

pending land dispute in between the family members of the

victims as also the appellants by reason of which, the

appellants assaulted the victims. He stated that he came to

know about the incident from the mouth of the injured witness

being P.W.5. He, however, was a witness to the inquest of the

deceased. He identified his signature on the inquest report

which was tendered in evidence and marked as Exhibit-2/1.

He was also a witness to the seizure made by the police at the

place of occurrence. He identified the appellants in Court. He

stated that, Amit Tewari @ Guddu and Pradip Tewari were not

present in Court. In cross-examination, he stated that he saw

the injured persons at the spot and it was about 11 P.M. in

the night.

30. A police constable deposed as P.W.8. He stated that, he

along with another constable led by a Sub-Inspector of Police

went to the house of Ramnath Tewari on May 4, 2017, where

two wooden battens were seized. He identified his signature

on such seizure list which was tendered in evidence and

marked as Exhibit-5/1. He identified the seized articles. He

identified Ramnath Tewari in Court.

31. The doctor who held the post-mortem on the dead body of

the deceased deposed as P.W.9. He described the injuries that

he found on the dead body of the deceased. He stated that, in

his opinion the cause of death was due to the injuries as noted

in the post-mortem report and ante-mortem in nature. The

post-mortem report was tendered in evidence and marked as

Exhibit-6.

32. In cross-examination, the post-mortem doctor, P.W.9,

stated as follows:

"I did not give my final opinion in this report as it was kept awaiting till the arrival of chemical examination report. Had the chemical examination been there, I would have given my final opinion whether death was suicidal or accidental or else."

33. P.W.10 is another witness who heard about the attack. He

identified the appellants in Court. In cross-examination, he

stated that, he gave the statement for the first time in Court

that he left his house in search of those two brothers.

34. P.W.11 arrived at the Lalbagh Sub-Divisional Hospital

after hearing about the incident. He identified his signature

on Exhibit 2/2 being inquest report of the deceased.

35. P.W.12 is a doctor who examined P.W.5 at Murshidabad

Medical College & Hospital. He described the nature of

injuries that he found on P.W.5. He tendered the injury report

which was marked as Exhibit-7. He tendered the bed head

ticket in evidence.

36. P.W.13 was also not present at the place of occurrence at

the time of the incident.

37. P.W.14 is a doctor who was posted at Lalbagh Sub-

Divisional Hospital as the Medical Officer. On April 29, 2017,

he examined P.W.5. He stated that P.W.5 was brought to the

Hospital in the emergency ward. On examination, he found

P.W.5 was semi-conscious and delirious. At that time P.W.5

was bleeding from his nose. Ecchymosis was present around

his left eye. There was abrasions over his left forearm and

back of right elbow. After giving basic primary treatment,

P.W.5 was referred to the Murshidabad Medical College and

Hospital for better treatment. He tendered the injury report of

P.W.5 dated April 29, 2017 in evidence and the same was

marked as Exhibit-9. The referral letter was tendered in

evidence and marked as Exhibit-10.

38. P.W. 15 stated that, on May 3, 2017 he was posted as the

Resident Medical Officer (RMO) of Murshidabad Medical

College and Hospital. On such date, he examined P.W. 5. On

examination, he found P.W. 5 conscious, alert and co-

operative. At the time of examination, P.W. 5 was with the

physical condition as he described in his evidence. He

recorded the statement of P.W. 5. He narrated such statement

in evidence. He tendered the bed head tickets which were

marked as exhibit 11. In cross-examination, he stated that, a

portion of the bed head ticket was over-written and the left

thumb impression of the patient on the statement part of the

bed head ticket was not endorsed as to be taken by P.W. 15

from the patient.

39. Another doctor of Murshidabad Medical College and

Hospital deposed as P.W. 16. He stated that, he treated the

P.W. 5 on April 30, 2017, May 1, 2017 and May 2, 2017. He

tendered the bed head ticket of P.W. 5, which was tendered in

evidence and marked as exhibit 11/1 series.

40. Another doctor attached to Murshidabad Medical College

and Hospital as the RMO deposed as P.W. 17. He did not add

much substance of the case of the prosecution.

41. P.W. 18 attended the P.W. 5 on May 19, 2017 in his

chamber. P.W. 5 narrated a history of trauma on April 29,

2017 to him. In cross-examination, he stated that, fracture of

ulna was possible due to falling from running motor cycle

accidentally.

42. P.W. 19 is the Investigating Officer of the case. He

narrated about the course of investigations. He tendered

various documents and material exhibits in evidence.

43. On conclusion of the evidence of the prosecution, the

appellants were examined under Section 313 of the Criminal

Procedure Code. All the appellants claimed to be falsely

implicated and being innocent. None of the appellants,

disclosed any desire to adduce any defence witness.

44. The case of the prosecution is that, an incident of assault

took place on April 29, 2017 where, a person was murdered

and that P.W. 5 suffered injuries of grievous hurt and that

there was an attempt of murder P.W. 5.

45. That the cause of death of the deceased was homicidal in

nature was not conclusively established at the trial by the

prosecution. The doctor conducted the post mortem on the

dead body of the deceased, was unable to state conclusively

that, the injuries were homicidal in nature. The post mortem

report being Exhibit.6 did not state that the injuries were

homicidal in nature.

46. P.W. 5, the injured eye witness, claimed that there was

an incident of assault on him and the deceased at the behest

of the appellants. P.W. 5 suffered grievous injuries. One of

which was fracture on the ulna. He was treated both in

government hospitals as also by a private practitioner. One of

the doctors treating P.W. 5, the P.W. 18 stated in his cross-

examination that, fracture of Ulna was possible due to falling

from the running motor cycle accidentally.

47. P.W. 5 in his depositions stated that, he was riding the

motor cycle with the deceased being the pillion rider with him.

During his cross-examination, P.W. 5 used the word 'accident'

twice to describe the incident in which he suffered the injuries.

His statement in cross-examination are noted above.

48. The possibility of P.W. 5 suffering the injuries by way of

an accident was not ruled out by the prosecution. The

deceased was riding as a pillion rider of the motor cycle of P.W.

5. Therefore, the possibility of the deceased succumbing to

death due to the injuries suffered in an accident was not ruled

out conclusively. In this regard, the oral testimony of the post

mortem doctor, being P.W. 9 becomes extremely relevant. He

stated that, he could not give any final opinion with regard to

whether the death was suicidal or accidental or else in

absence of chemical examination report. The chemical

examination report was neither tendered in evidence during

the trial nor the attention of the post mortem doctor, P.W.9

drawn to it. In our view, therefore, whether the death of the

deceased was homicidal in nature was not conclusively

established at the trial by the prosecution.

49. P.W. 2, as a maker of the written complaint, stated that,

he was accompanied by three other persons when they arrived

at the place of occurrence. Of the three other persons

accompanying P.W. 2 to the place of occurrence, only one was

examined i.e. P.W. 10. Two others were not examined.

50. Prosecution did not produce any witness other than

P.W.5 claiming that, such witness saw the incident occurring.

The incident occurred at night without any other person being

available at the place of occurrence. Injury suffered by P.W.5

was said by the doctor examining him as one capable of being

inflicted by a motorcycle accident. Therefore it would not be

prudent to deduce that the injuries suffered or the deceased

died due injuries sustained in an incident of assault. Element

of doubt creeps into the narrative of assault propounded by

the prosecution.

51. In Ishwar Singh (supra), the Supreme Court observed

that, non-examination of some witnesses would not matter if

the witnesses examined unfolded the prosecution case fully. It

is well-established that witnesses essential to the unfolding of

the narrative on which the prosecution is based must the

examined.

52. In Deny Bora (supra), the Supreme Court found that,

witnesses who were not examined were natural and competent

witnesses and that such witnesses could throw immense light

on the facts.

53. In the facts and circumstances of the present case, two

persons, who apparently were the first responders along with

P.W. 2 were not examined by the prosecution.

54. Sharad Birdhi Chand Sarda (supra) recognises the fact

when the witnesses are relatives of the injured or the

deceased, there is possibility of such witnesses exaggerating

the incident, may be not consciously. The same view was

expressed by the Supreme Court in Jalpath Rai & Ors.

(supra).

55. Khem @ Khem Chandra EPC (supra) observes that, oral

testimony can be classified into three categories namely,

wholly reliable, wholly unreliable or neither wholly reliable nor

wholly unreliable. In the first category, there would be no

difficulty in the Court coming to its conclusion either way. In

the second category, again, the Court will find no difficulty in

coming to a conclusion. In the third category, the Court is

required to circumspect for corroboration in material

particulars by reliable testimony, direct or circumstantial.

56. In the facts of the present case, death of the victim was

not established conclusively to be homicidal in nature. One of

the Doctors treating the injured eye-witness, P.W.-5, stated in

cross-examination that, the fracture suffered of such injured

could be a result of an accident. No eye-witness came to the

dock to claim they saw any of the appellants assaulting any of

the two victims.

57. In absence of assault being established and in absence

of the death of the deceased being established conclusively as

one of homicidal in nature, we are afraid, the appellants are

entitled to the benefit of doubt.

58. In such circumstances, we reverse the judgment of

conviction and set aside the order of sentence.

59. CRA 170 of 2021 is allowed.

60. The appellants be released from custody in the event

they are not required in any other police case and subject to

them furnishing a bond under Section 437A of the Criminal

Procedure Code which shall remain valid for a period of six

months from date.

61. A copy of this judgment and order along with all trial

Court's records be remitted to the appropriate Court for

further action, expeditiously.

62. Urgent 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.)

63. I agree.

(Md. Shabbar Rashidi, J.)

CHC/AD/Kaushik/DD