Ashim Goldar & Ors vs The State Of West Bengal
2023 Latest Caselaw 6298 Cal

Sl. No. 51




                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. 48 of 2017

                             Ashim Goldar & Ors.
                                    -Vs-
                           The State of West Bengal


For the Appellants     :      Mr. Sekhar Kumar Basu, Sr. Adv.
                              Mr. Pradip Kumar Roy, Adv.
                              Mr. Swapan Kumar Mallick, Adv.
                              Mr. Ujjal Roy, Adv.

For the State          :      Mr. Neguive Ahmed .. ld. A.P.P.
                              Ms. Trina Mitra, Adv.

Heard on               :      13.09.2023, 19.09.2023 & 20.09.2023


Judgment on            :      20.09.2023



Joymalya Bagchi, J. :-

1.

Appeal is directed against judgment and order dated 19.12.2016

and 20.12.2016 passed by learned Additional Sessions Judge, 1st Court,

Hooghly in Sessions Trial No. 21 of 2002 arising out of Sessions Case

No.151 of 2000 convicting the appellants for commission of offence

punishable under Sections 302/34 of the Indian Penal Code and

sentencing them to suffer rigorous imprisonment for life and to pay a

fine of Rs.5000/- each, in default, to suffer simple imprisonment for

three months more.

Prosecution case:-

2. Prosecution case as alleged against the appellants is as follows:-

On 28.05.1994 at 10.45 PM Rama Rakshit (wife of Bhanudeb

Rakshit, the deceased) received information that her husband was lying

in bleeding condition on the road near the house of Haradhan Pal (PW 4)

of Mankundu Palpara. Hearing the news she rushed to the place of

occurrence along with nephew of the deceased, Bablu Rakshit (PW 2).

Her nephew viz, Pintu Dutta (PW 3) had already arrived at the spot.

Upon enquiry, her husband told her at 10.30 PM while he was returning

home, appellants and two others had assaulted him with napla (curved

daggar), sword, revolver etc. As a result, he suffered severe bleeding

injuries. Her husband was removed to Chandannagar Hospital for

treatment.

3. On the complaint of Rama, Bhadreswar Police Station Case

No.100 of 1994 dated 28.05.1994 under Sections 326/307/34 of the

Indian Penal Code and under Sections 25/27 of the Arms Act was

registered for investigation.

4. In course of investigation, appellants were arrested and charge

sheet was filed against them. Charge was framed under Sections 302/34

IPC. Appellants pleaded not guilty and claimed to be tried.

5. In course of trial, prosecution examined thirteen witnesses and

exhibited a number of documents including injury report containing

dying declaration (Ext. 7). Defence of the appellants was one of

innocence and false implication.

6. In conclusion of trial, learned trial Judge by the impugned

judgment and order dated 19.12.2016 and 20.12.2016 convicted and

sentenced the appellants, as aforesaid.

Arguments at Bar:-

7. Mr. Sekhar Kumar Basu, learned Senior Advocate with Mr.

Pradip Kumar Roy and Swapan Kumar Mallick argued there is no

eyewitness to the incident. Time and place of death have not been

proved. Two hands of the victim were severed and he received grave

injuries on the throat. Having suffered such injuries, it is impossible for

a person to speak. This is corroborated by the post mortem doctor (PW

10). The purported dying declaration recorded in the injury report is not

reliable. As both the hands were severed, it is unlikely the LTI on the

document was that of the victim. PWs 1 and 2 resides 1½ km. away

from the place of occurrence. It is unlikely they could have heard the

dying declaration made by the victim. Similarly, PW 3 could not have

heard the dying declaration. Though the victim was found beside the

residence of PW 4, none of the other witnesses spoke about PW 4's

presence at the place of occurrence. PW 4 had political enmity with the

appellants. Hence, the oral dying declaration proved through these

witnesses ought to be taken with a pinch of salt. Appellants are entitled

to an order of acquittal.

8. Mr. Neguive Ahmed, learned Additional Public Prosecutor with

Ms. Trina Mitra submitted the incident occurred beside the house of PW

4. He heard shouts and went to the place of occurrence. He found the

victim in bleeding condition. Victim made a dying declaration implicating

the appellants. Subsequently, PWs 1, 2 and 3 came to the spot and the

victim again made similar statement. Nature of injuries noted by these

witnesses are corroborated by the post mortem doctor. PW 11 who

treated the victim at hospital recorded his dying statement in the injury

report. Dying declarations are proved beyond doubt. Hence, the appeal

is liable to be dismissed.

Evidence on record:-

9. PW 1 (Rama Rakshit) is the wife of the deceased and the de-facto

complainant. She deposed at around 10.30 and 10.40 PM a person

informed her that her husband was lying with bleeding injuries beside

the house of Haradhan Pal. She along with Bablu Rakshit (PW 2) went to

the spot. Her husband was gasping and stated the appellants had

assaulted him. He was removed to Chandannagar S. D. Hospital. At the

hospital her husband again made statement before the doctor. She

lodged written complaint which was scribed by her nephew, Pintu Dutta

(PW 3). She proved her signature. During cross-examination,

suggestions were given to the witness that her husband was involved in

illegal activities like gambling and sale of illicit liquor. He was also

involved in a double murder case.

10. PW 2 (Bablu Rakshit) is the nephew of the deceased. He

corroborated PW 1. He stated his uncle made dying declaration to them.

During cross-examination, he stated he did not enquire from his uncle

where he was actually assaulted. It took 40-45 minutes for them to

reach the hospital.

11. PW 3 (Pintu Dutta) is another nephew. He stated the deceased

Bhanudeb Rakshit was his maternal uncle. He found his maternal uncle

lying near the house of Ex-Commissioner, Chandannagar Municipality,

Haradhan Pal. His maternal uncle made dying declaration to him. He

scribed the FIR. Police seized one napkin, one pair hawai chappals and

bloodstained earth from the place of occurrence. He put his signature on

the seizure list. During cross-examination, he stated PW 1 resided 1 km

away from the place of occurrence.

12. PW 4 (Haradhan Pal) is the Ex-Commissioner of Chandannagar

Municipality. He deposed at 11.00 PM he heard cries. He came outside

and found the victim lying on the culvert of kutcha drain. Victim had

suffered bleeding injuries. He stated he had been assaulted by the

appellants with katari and other weapons. He also disclosed that his

nephews resided nearby. They were informed. PW 3 came to the spot.

Thereafter, PWs 1 and 2 came. Victim was removed to hospital.

13. Prosecution has relied on these witnesses to prove the oral dying

declaration.

14. PW 11 (Dr. Pit Baran Chakraborty) Medical Officer at

Chandannagar S. D. Hospital deposed he recorded the dying declaration

at the hospital. He stated he examined patient at 12-12.20 AM on

29.5.1994. He found the following injuries:-

"1) Right forehand nearly detatched from just below elbow;

2) Deep incised wounds, two in numbers, over the left forearm;

3) Deep incised wound on upper part of front of neck- 3"x 2"x 2"."

In the history of the case he recorded the statement of the victim that he

had been assaulted by the appellants with sharp cutting weapon.

During cross-examination, he admitted due to profuse bleeding there

may be anoxia. He had noted patient was drowsy. He also deposed

injury having 2" depth on the upper part of the neck may touch the

thyroid cartilage and vocal chord. If the injury cuts the vocal chord, the

patient will not be in a position to speak.

15. PW 10 (Dr. Himansu Roy) is the post mortem doctor. In addition

to the severed left and right hand, he noted the following injuries:-

"1) Cut injury 4 inches in length with four stitches in the left clavicular region;

2) Right lung was pale and severely injured;

3) Left lung was pale;

4) Heart -both sides empty;

5) Vessellls collapsed;

6) Another incised wound over left chin with 11 stitches;

7) There was head injury over the parieto-temporal region of skull;

8) Pharynx and oesophagus injured;

9) Lever, splin and kindneys all were pale due to bleeding."

He opined death was due to severe blood loss followed by irreversible

surgical shock due to aforesaid injuries which were homicidal in nature.

Injuries were caused by a sharp weapon. He proved the post mortem

report. During cross-examination, he stated severe blood loss causes

anoxia. If bleeding from the parietal region and other parts of the body

continued for 40 minutes, victim will not be in a position to speak. He

also admitted he had kept the larynx and trachea column blank in his

report.

16. PW 12 (Tarakeshwar Das) and PW 13 (Satyaprosad Banerjee) are

the first and second investigating officers respectively. PW 13 stated he

had handed over investigation to Bholanath Bhaduri who submitted

charge sheet. Bholanath was not examined as he was not alive.

Findings of the Court:-

17. Analysis of the evidence on record shows the prosecution case is

primarily founded on the dying declarations of the victim.

18. PW 11 is the medical officer who treated the victim at

Chandannagar S. D. Hospital. He stated he examined the victim at

12.20 AM on 29.05.1994. He noted the injuries which comprised of deep

incised wounds in front of neck, wounds on the right forearm and left

forearm. Right forearm was wholly detached. He claimed patient had

made statement disclosing the history of assault and had implicated the

appellants. During cross-examination, this witness, however, admitted

there was profuse bleeding and the patient was drowsy. He stated huge

loss of blood would create anoxia. Injury in front of neck was 2" deep

and had touched the larynx. If thyroid cartilage and the vocal chord

were cut patient will not be in a position to speak. Post mortem doctor

(PW 10) corroborates these findings. He stated if there is profuse

bleeding from the parietal wound and other parts of body for 40

minutes, victim may not be able to speak.

19. As per the prosecution case, victim was found lying injured near

the house of Haradhan Pal around 10.30/11.00 PM. From the injury

report it appears he had been admitted to the hospital at 12.20 AM, the

next day i.e. after 1½ hours from the time the victim was found lying

with bleeding injuries. As the victim had suffered profuse bleeding for

more than an hour before he reached the hospital, it is most unlikely if

not impossible as per opinion of PWs 10 and 11 that he would not be in

a position to make statement. Capacity of the victim to make statement

to PW 11 is highly doubtful. PW 11 could not identify the LTI put on the

injury report. Victim had suffered severe injuries on his right and left

forearm. Both the arms were severed at the wrist as per post mortem

report. In view of such injuries, it is impossible for the victim to have put

his LTI on the statement. Dying statement endorsed in the injury report

by PW 11 in all likelihood is fabricated at the behest of the relations who

brought the victim to the hospital. In view of the aforesaid, no reliance

can be placed on the purported dying declaration endorsed in the injury

report.

20. If the injury report is not believed, prosecution is left with the

purported oral dying declarations as deposed by PWs 1 to 4. Evidence on

record proves PWs 1 and 2 resided at a place which was not less than 1

km. away from the place of occurrence. PW 1 deposed a person informed

her about the incident. Thereafter, she along with PW 2 went to the

place of occurrence. Similarly, PW 3 also deposed he was informed by a

person that his maternal uncle was lying with bleeding injuries and

went to the place of occurrence. Prosecution has not led evidence to

show the distance between the residence of PW 3 and the place of

occurrence. Though these witnesses claimed they took 5-10 minutes to

reach the place of occurrence, in view of the distance between residence

of PWs 1 and 2 and the place of occurrence, estimation of time appears

to be highly optimistic. It is unclear what is the distance between the

residence of PW 3 and the place of occurrence which would probabilise

his presence at the place of occurrence immediately after the

occurrence.

21. Opinion of the medical doctors clearly show the victim had

suffered profused bleeding. With such profuse bleeding for 40 minutes,

victim would not be able to speak. Victim had also suffered 2" deep

injury on the throat which had touched the larynx. PW 11 opined if the

injury touches the thyroid cartilage and the vocal chord, victim would

not be in a position to speak. Post mortem doctor did not clarify whether

the injury touched the thyroid cartilage or the vocal chord. Column

relating to these organs were kept blank. It was not recorded that they

were intact and healthy. Prosecution does not dispel the lingering doubt

with regard to the capacity of the victim to speak due to the grievous

injuries causing profuse loss of blood and imminent possibility of

damage to thyroid cartilage and vocal chord.

22. Mr. Ahmed strenuously argued notwithstanding such injuries

dying declaration made to PW 4 cannot be said to be improbable. Body

of the victim was found beside the house of PW 4, the Ex-Councillor. He

stated he heard cries and came out. He saw the victim lying in the drain

beside the culvert. Victim made dying declaration to him.

23. I am unwilling to give credence to the said witness for the

following reasons. It is true victim was found beside the residence of PW

4 and the said witness had claimed hearing hue and cry he had come

out and victim made the dying declaration to him. But his evidence

must be judged from the capacity of the victim to make such statement.

24. As discussed earlier, victim had suffered 2" deep injury on the

neck which in all likelihood would have injured his thyroid cartilage and

vocal chord. Post mortem doctor did not dispel the doubt with regard to

the injury on these organs. He merely stated the relevant columns were

kept blank. This does not dispel the doubt that the thyroid cartilage and

vocal chord may have been damaged due to the deep cut injury on the

throat affecting the victim's power of speech. In addition thereto,

presence of PW 4 at the spot is also doubtful. He had sent information to

PWs 1, 2 and 3 and they came to the spot. But none of these witnesses

corroborates PW 4 with regard to his presence at the place of

occurrence. PW 4 is an active member of a political party and was the

former chairman of the municipality. During cross, he admitted the

appellants belonged to a different political party. Possibility of

concoction of the dying declaration at his behest to implicate his

political opponents in the murder cannot be ruled out.

25. For these reasons, I am unwilling to give reliance on the aforesaid

witnesses and hold the oral dying declaration has been proved beyond

doubt.

Conclusion:-

26. In the light of the aforesaid discussion, I set aside the conviction

and sentence of the appellants.

27. Appeal is accordingly allowed.

28. Appellants are directed to 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.

29. Lower court records along with a copy of this judgment be sent

down at once to the learned trial Court for necessary action.

30. Photostat certified copy of this judgment, if applied for, be given

to the parties on priority basis on compliance of all formalities.

I agree.

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




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