Smt. Banti Dey vs The State Of Tripura
2021 Latest Caselaw 435 Tri

                          Page 1 of 28


               HIGH COURT OF TRIPURA
                     AGARTALA
                CRL.A. NO.23 OF 2017

Smt. Banti Dey
W/o. Lt. Swapan Dey, of Gorurbandh, Ward No. 4, PS & PO-
Sonamura, Sepahijala

                                              -----Appellant(s)
                           Versus
1. The State of Tripura

2. Shri Surjya Datta
S/o. Lt. Manindra Datta, of Gorurbandh, Ward No. 4, PS And
PO-Sonamura, Sepahijala.

3. Shri Badal Datta
S/o. Lt. Manindra Datta, of Gorurbandh, Ward No. 4, PS And
PO- Sonamura, Sepahijala.

4. Shri Gautam Datta
S/o. Lt. Manindra Datta, of Gorurbandh, Ward No. 4, PS And
PO- Sonamura, Sepahijala.

5. Shri Uttam Datta
S/o. Lt. Minindra Datta, of Gorurbandh, Ward No. 4, PS And
PO- Sonamura, Sepahijala.

6. Shri Titan Das
S/o. Shri Dulal Das, of Gorurbandh, Ward No. 4, PS And PO-
Sonamura, Sepahijala.

                                         -----Respondent(s)

CRL.A. NO.34 OF 2017 The State of Tripura Represented by Under Secretary, Department of Home, Govt. of Tripura.

-----Appellant(s)

Versus

1. Sri Surjya Datta S/o Lt. Manindra Datta, R/O Garurband, Ward No. 4, PS- Sonamura, Dist. Sepahijala Tripura.

2. Shri Badal Dutta S/o. Lt. Manindra Datta, R/O Garurband, Ward No. 4, PS- Sonamura, Dist. Sepahijala Tripura.

3. Sri Goutam Datta S/o. Lt. Manindra Datta, R/O Garurband, Ward No. 4, PS- Sonamura, Dist. Sepahijala Tripura.

4. Sri Uttam Datta S/o. Lt. Manindra Datta, R/O Garurband, Ward No. 4, PS- Sonamura, Dist. Sepahijala Tripura.

5. Sri Titan Das S/o Sri Dulal Das, R/O Garurband, Ward No. 4, PS- Sonamura, Dist. Sepahijala Tripura.

All are resident of Garurband, Ward No.4, P.S. Sonamura, Dist. Sepahijala Tripura.

-----Respondent(s)

In Crl. A. No. 23 of 2017

For the Appellant(s) : Mr. Samar Das, Advocate. For the Respondent No.1 : Mr. R. Datta, P.P. For the Respondent Nos.2 to 6 : Mr. J. Bhattacharjee, Advocate.

In Crl. No.34 of 2017

For the Appellant : Mr. A. Acharjee, Speical P.P. For the Respondents : Mr. J. Bhattacharjee, Advocate.

Date of hearing               : 10.02.2021.

Date of delivery of
Judgment & Order              : 31/03/2021.

Whether fit for reporting     : NO.



                        BEFORE

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH

JUDGMENT & ORDER

( Arindam Lodh, J )

The present appeals arise out of the judgment

and order of acquittal dated 12.05.2017 passed by the

learned Additional Sessions Judge, Sonamura, West Tripura

District (now Sepehajila District) in case No. Sessions Trial

10(WT/S) of 2013.

2. Out of the two appeals, the first one has been

filed by Smt. Banti Dey being the complainant and the

second one has been preferred by the State of Tripura. The

appellants have urged to reverse the finding of acquittal

returned by the learned Addl. Sessions Judge.

3. The prosecution case as projected by the learned

Additional Sessions Judge is reproduced here-in-below:-

"This is a sessions Triable case and the prosecution was set into motion on the basis of a written complaint lodged by one Smt. Banti Dey, W/O Late Swapan Dey of Garurband, P.S.-Sonamura alleging inter alia that on 11.12.2010 in the evening at about 07.30 PM the accused persons namely, Surjya Datta, Badal Datta, Titan Das, Uttam Datta

and Goutam Datta assaulted her husband Swapan Dey and her brother Chinmoy Bhowmik and her other cousin brother Samir Bhowmik, Shyamal Bhowmik, Prasenjit Bhowmik and Tapan Bhowmik by means of iron rod, lathi and fist and blows as a result of which they sustained grievous bleeding injuries and were admitted to Melaghar and GB Hospital and the same incident took place at Garurband market."

4. Based on that information, FIR No.190 dated

11.12.2010 was registered under Section 325/34 of IPC and

S.I. Samir Kanti Das being endorsed had taken up the

investigation on 11.12.2010 itself.

During investigation, S.I. Samir Kanti Das visited

the place of occurrence, prepared the hand-sketch map of

the place of occurrence with a separate index, and also

recorded the statements of the witnesses. He raided the

houses of the accused-persons but failed to apprehend

them. He made a prayer before the learned Court for

adding Section 302 of IPC as the husband of the

complainant, Swapan Dey succumbed to his injuries at GBP

Hospital. Subsequently, due to official reasons, the case

docket was endorsed to S.I. S. Basu Roy Chowdhury to

complete the investigation. In the process, he re-examined

four witnesses out of ten witnesses and also produced the

witness Suman Dey before the Court of Magistrate for

recording his statement under Section 164(5) of Cr.P.C. The

investigating officer collected the medical report of the

victims, Sri Shyamal Bhowmik and Sri Tapan Bhowmik and

after completion of investigation submitted charge-sheet

against the accused Surjya Datta, Badal Datta, Goutam

Das, Uttam Datta, Titan Das under Section 302/323/34 of

IPC.

5. After commitment, the learned Addl. District

Judge framed charges against the aforesaid respondents

and the same were read over to which they pleaded not

guilty and claimed to be tried.

6. During trial, the prosecution examined 15

witnesses, as follows:-

i) P.W.-1, Dharmendu Das who recorded the

statement of witness Suman Dey @ Subinoy, aged about 6

years. P.W.-2, Smt. Banti Dey, the informant of this case

and the wife of the deceased, Swapan Dey. P.W.-3, Tapan

Bhowmik, another victim of this case. P.W.-4, Sanjoy Das

who is the driver of auto truck bearing No.TR01-H-1838 by

which the victim Swapan Dey was shifted to Melaghar

Hospital from Garurband market and he also carried the

victim to GB Hospital, Agartala by another vehicle. P.W.-5,

Md. Alek Hossain, who is the witness of inquest report of

deceased-Swapan Dey. P.W.-6, Gopal Pal also is the

witness of inquest report of deceased-Swapan Dey. P.W.-7,

Dr. Mani Ranjan Debbarma who made requisition to the O/C

GB TOP for post-mortem examination of deceased Swapan

Dey. P.W.-8, Shyamal Bhowmik is another victim of this

case. P.W.-9, Prasenjit Bhowmik is the brother of the

informant and the victim. P.W.-10, Chinmoy Bhowmik is the

brother of the informant and the cousin brother of the

victims. P.W.-11, Dr. Mousumi Sarkar, Medical Officer,

Melaghar Sub-Divisional Hospital, who attended the victim

Tapan Bhowmik and Shyamal Bhowmik in the emergency of

Melaghar Sub-Divisional Hospital. P.W.-12, ASI Arun

Debbarma who prepared the inquest report and also made

arrangement for post-mortem examination of deceased-

Swapan Dey. P.W.-13, Master Subinoy Dey @ Suman, who

is the son of informant and deceased Swapan as well as

nephew of the victims. P.W.-14, S. Basu Roy Chowdhury is

the R/O and 2nd I/O of this case. P.W.-15, SI Samir Kanti

Das is the 1st I/O of this case.

The prosecution also introduced as many as ten

documents which were exhibited on proof.

7. At the closure of recording evidence, all the

accused persons were examined under Section 313 Cr.P.C.

when they were noticed about the incriminating evidences

as surfaced from the prosecution witnesses. They denied

the allegation levelled against them. The accused persons,

the private respondents herein declined to adduce any

evidence on their behalf.

8. Since both the appeals are filed against the order

of acquittal, before adverting to the merit of the appeals,

we would like to revisit the guiding principles as delineated

by the Apex Court in the case of Chandrappa & ors. Vs.

State of Karnataka reported in (2007) 4 SCC 415

regarding the powers of the appellate court while dealing

with the appeal against the order of acquittal after taking

into consideration of its earlier decisions[SCC p. 432

para.42]:-

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law.

(3) Various expression such as, "substantial and compelling reasons", " good and sufficient grounds", " very strong circumstances", " distorted conclusions", "glaring mistakes", etc, are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusion are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal recorded by the Trial Court."

9. Keeping in mind the aforesaid principles, we shall

decide the sustainability of the judgment and order of

acquittal as passed by the learned Addl. Sessions Judge,

rejecting the prosecution version in support of the charges

framed against the accused-persons.

10. Mr. Samar Das, learned counsel appearing for

the complainant-appellant contended that the learned Addl.

Sessions Judge committed a serious error in rejecting the

versions of the injured eye-witnesses, particularly, P.W.2,

and P.W.-13, the wife and son of the deceased respectively.

According to learned counsel, the learned Addl. Sessions

Judge ought to have relied upon the evidence let in by

P.W.-3 (Sri Tapan Bhowmik), P.W-8 (Sri Shyamal

Bhowmik), P.W.-9 (Sri Prasenjit Bhowmik) and P.W.-10 (Sri

Chinmoy Bhowmik) who being the brothers of the

complainant-appellant, were the victims of the incident as

they also had sustained injuries due to the assault caused

by the accused persons.

11. On the other hand, Mr. J. Bhattacharjee, learned

counsel appearing for the private respondents who were the

accused in the case, contended that the prosecution had

miserably failed to establish the charges levelled against the

accused persons. Mr. Bhattacharjee, learned counsel

candidly submitted that the entire prosecution case was

manufactured and afterthought. Lots of improvements,

exaggerations, contradictions, and deviation from earlier

statements were apparent in the deposition of the

prosecution witnesses who claimed to be the victims of the

incident, being brutally assaulted by the accused persons

with the blows of iron rod and 'lathis'(sticks). Learned

counsel defending the judgment of the learned Addl.

Sessions Judge contended that there was no error

committed by the Court holding that neither the

complainant-Banti Dey (P.W.-2) nor her son (P.W.-13) and

brothers were of any credence as their testimonies

appeared to be unreliable and untrustworthy. Learned

counsel for the accused-persons emphasized that even the

prosecution has failed to establish a particular spot as a

place of occurrence of the crime. The investigating officer

shifted the scene of crime during his investigation

intentionally only to implicate the accused persons with the

case on hand.

12. The above rival submissions advanced by the

learned counsel appearing for their respective parties

prompted us to make a survey of the ocular testimonies

and materials brought on record by the prosecution. For the

sake of gravity, we would like to recapitulate the evidence

of P.W.2 and P.W.-13, at the outset.

12.1. P.W.-2, Smt. Banti Dey is the wife of the

deceased, Swapan Dey. She deposed that all the accused

persons were close relatives of her deceased husband,

Swapan Dey. On 11.12.2010, her husband went to

Gururband market in the evening accompanied by his son,

Subinoy Dey @ Suman (P.W.-13). She was watching T.V.

programme at the house of Md. Abdul Miah, when at about

07.30 PM she heard shouting of her son, P.W.-13 from the

side of the ground of the Garurband High School asking for

help. She immediately rushed to the spot and saw the

accused respondents torturing her cousins, Sri Tapan

Bhowmik, Sri Shyamal Bhowmik, and her brother Sri

Chinmoy Bhowmik by means of 'lathi‟ (stick). In that

meanwhile, her husband, Swapan Dey also arrived at the

place of occurrence from Garurband market and noticed the

incident. As soon as her husband stood against the accused

respondents, Goutam Datta struck on the head of her

husband by a lathi, followed by 3/4 blows inflicted by Titan

Das with a lathi uttering the words to kill her husband. Her

husband fell down on the ground. She tried to rescue her

husband but the accused persons hit her with lathi. P.W.-2

further stated that at the place of occurrence, there was a

temple of 'Pagalimashi'. Thereafter, she shifted the entire

injured persons to Melaghar hospital with the help of her

brother and some other local persons by a small transport

vehicle. However, her husband was, thereafter, shifted to

GBP Hospital, Agartala. After returning from Melaghar

Hospital, she went to the house of one Tarun Kr.

Chakraborty, Advocate's Clerk along with her in-law Kanailal

Das to write an ejahar according to her version. She lodged

the FIR on the same day. On 13.12.2010, her husband

succumbed to his injuries at GBP Hospital.

12.2. P.W.-13, Subinoy @ Suman Dey was the minor

son of the deceased Swapan Dey and P.W.-2. At the time of

his deposition, he was aged about 11 years. He deposed

that on the fateful evening, he went to Garurband market

along with his father. While they were returning and

reached in front of the temple of 'Pagalimashi', his father

uttered a word 'kitare' (what happened). At that time,

respondent-Gautam Datta suddenly struck a blow on the

head of his father with a bamboo stick. At that moment, he

started shouting when his mother, Banti Dey had appeared

at the place of occurrence, before the accused-Gautam

Datta struck his father. At the same time, Titan Das told his

associate to kill his father when her mother jumped over

the body of his father attempting to save him but all the

private-respondents started to assault his father.

Subsequently, his injured father was taken to hospital by

his mother with the help of his maternal uncle. P.W.-13

confirmed that he made statement before the Magistrate

where he put his signature (Exbt-1/2 series).

13. P.W.-3, Sri Tapan Bhowmik being the brother of

P.W.-2 deposed that on 11.12.2010, he went to Gururband

market at about 07.00/07.30 PM and heard hue and cry of

his brother, Shyamal Bhowmik (P.W.-8) from the side of the

temple of 'Pagalimashi'. He rushed to the spot and saw the

accused-persons assaulting his brother Shyamal. He tried to

resist when all the accused persons attacked him with lathi

and assaulted him. Hearing his alarm, his other brothers,

namely Chinmoy (P.W.-10), Prasenjit (P.W.-9) and Samir

Bhowmik rushed to the spot when all the accused attacked

them with lathi. He further deposed that he saw the

accused-persons with the help of electric blub of the temple

of 'Pagalimashi'. Deposing further, P.W.-3 stated that since

he fell down on the ground, he saw his brother-in-law,

Swapan Dey reached there accompanied by his son Suman

(P.W.13). All on a sudden, the accused-persons, namely,

Gautam Datta and Titan Das gave some blows on the head

of Swapan Dey by a lathi who fell down on the ground, but,

series of blows were inflicted on the person of his brother-

in-law. In that meanwhile, his sister arrived at the place of

occurrence and jumped over the body of her husband when

all the accused-persons assaulted his sister (P.W.2)

physically. Subsequently, Tinku Das and Chinmoy shifted all

the injured persons including him to Melaghar Hospital by

the vehicle of Sanjoy Das. Swapan Dey was shifted to GBP

Hospital, Agartala where he succumbed to his injuries on

13.12.2010.

14. P.W.-8, Shyamal Bhowmik, another brother of

the informant (P.W.-2) deposed in the same tune as that of

P.W.3, Tapan Bhowmik.

15. P.W.-9, Prasenjit Bhowmik deposed that on

11.12.2010 when he was at Gururband market, he heard

hue and cry of some persons from the side of the temple of

'Pagalimashi'. He rushed to the spot and saw his brother-in-

law, Swapan Dey lying on the ground with bleeding injuries

and he also saw his cousin sister Banti Dey over the body of

Swapan Dey. The accused persons were beating his

brother-in-law and Bunti by means of lathi and he saw

some other persons at that place. Subsequently, they

shifted the injured persons to Melaghar Hospital. Swapan

Dey was referred to GBP Hospital where he succumbed to

his injuries on 13.12.2010.

16. P.W.-10, Chinmoy Bhowmik deposed that on

11.12.2010, at about 07.30 hours while he was at his

grocery shop at Gururband market, heard a quarrel

between his cousin-brother, Shyamal Bhowmik and Badal

Datta at Garurband market on the issue of refund of loan

money by the accused, Badal Datta. After few minutes, he

heard hue and cry from the side of the temple of

'Pagalimashi' at Gururband. Then and there he rushed to

the spot and saw the accused-persons assaulting his

cousins, Shyamal Bhowmik and Tapan Bhowmik by means

of lathi. When he arrived there, all the accused-persons also

started assaulting him by giving fists and blows and also by

lathi. He further deposed that in that meanwhile, Swapan

Dey arrived at the place of occurrence and tried to know

about the cause of such incident when accused-Uttam Datta

struck at the head of Swapan Dey by lathi and at the same

time, Titan Das gave 2/3 successive blows upon the head of

Swapan Dey. Swapan Dey fell down on the ground when his

wife-Banti Dey rushed to the spot and jumped over the

body of her husband to save him. But all the accused

persons indiscriminately gave blows on their bodies and

then fled away. He managed to shift Swapan Dey to

Melaghar Hospital by the vehicle of Sanjoy Das wherefrom

he was referred to GBP Hospital, Agartala. Swapan Dey

succumbed to his injuries on 13.12.2010.

17. These are the material witnesses who adduced

their evidence and claimed their presence at the time of

alleged occurrence at the scene of the crime. P.W.-4,

Sanjoy Das carried the victim, Swapan Dey from Garurband

market to Melaghar Hospital by his vehicle. P.W.11, Dr.

Mousumi Sarkar was the M.O of Melaghar Hospital. She

deposed that on 12.12.2010 in the morning two patients,

namely Tapan Bhowmik and Shyamal Bhowmik came to the

emergency ward of Melaghar Hospital. She found no

external injury on the body of Shyamal Bhowmik and after

examination of Tapan Bhowmik, she found there was

swelling over his left cheek and abrasion on the left knee.

They were discharged with medical aid.

18. P.W.-5, Md. Alek Hossain and P.W.-6 Gopal Paul

are the witnesses of inquest report of deceased-Swapan

Dey.

19. P.W.-7, Dr. Mani Ranjan Debbarma sent

requisition to the O/C GB TOP for arranging PM examination

of deceased-Swapan Dey.

20. P.W.-12, ASI Arun Debbarma prepared the

inquest report of deceased-Swapan Dey at GBP Hospital

Morgue and subsequently prepared the dead body challan

of deceased Swapan Dey after post-mortem examination.

21. P.W.14 and P.W.15 are the investigating police

officers who after investigation submitted charge-sheet

against the accused persons namely, Surjya Datta, Badal

Datta, Goutam Datta, Uttam Datta and Titan Das under

Section 302/323 and 34 of IPC.

These are the sum and substance of the

evidence of prosecution witnesses.

22. The learned Addl. Sessions Judge had drawn the

following points for determination of the complicity of the

accused-persons behind the crime:-

"i) Whether the prosecution has been able to prove that the accused persons, respondents No.2 to 6 in furtherance of common intention committed murder of Swapan Dey on 11.12.2010 at 19.30 hours by means of lathi, rod and fist and blows in front of the temple of Pagalimashi at Garurband under Sonamura P.S.?

ii) Whether the prosecution have been able to prove that the respondents No.2 to 6 in furtherance of common intention caused hurt to Shyamal Bhowmik and Tapan Bhowmik on 11.12.2010 at 19.30 hours in front of the temple of Pagalimachi at Garurband by means iron rod, lathi and fist and blows as a result of which they sustained injuries and treated at Melaghar Hospital and GB Hospital?"

23. The learned Addl. Sessions Judge having

considered the evidence and materials on record was of the

opinion that P.W.-2, Smt. Banti Dey, the informant and

P.W.-13, Subinoy Dey @ Suman, the son of the deceased

and P.W.2 were the star witnesses. That apart, P.W.2

claimed to be an eyewitness being one of the injured

victims.

24. It transpires that the prosecution failed to

examine any of the independent witnesses, though, the

alleged incident had occurred just at 19.30 hours and

allegedly in front of the temple of 'Pagalimashi‟ or at

Garurband market. As such, it would not be unnatural to

expect that during that period, there would be many

commuters in the market including businessman and

inhabitants in the Garurband market and many disciples in

and around the 'Pagalimashi' temple.

25. P.W.-3. P.W.-8, P.W.-9 and P.W.-10 are the

brothers as well as the accused-persons of the counter case

No.S.T(T-II) 01 OF 2015.

26. Before we discuss the evidentiary value of the

prosecution witnesses, it is worth to mention that relating

to the same incident, two FIRs were lodged at Sonamura

P.S. on 11.12.2010; one by Gautam Datta at about 21.15

hours which had been registered as Sonamura P.S. Case

No.189/2010 under Section 325/34 of IPC against Samir

Bhowmik, Nikhil Bhowmik, Pranjit Bhowmik, Shyamal

Bhowmik, Tapan Bhowmik and Chinmoy Bhowmik. In

respect of the same incident, another FIR had been lodged

by Smt. Banti Dey at 21.25 hours before the same P.S.

which was registered as Sonamura P.S Case No.190/2010

under Section 325/34 of IPC against respondents No.2 to 6.

It is transpired that the contents of both the complaints

were found to be the same except the names of the

accused-persons. However, according to us, the impact of

lodging two FIRs as afore-stated may be dealt with later on,

after evaluation of the merits of the prosecution evidence.

27. Now, on close scrutiny of the evidence and

materials on record, it transpires that P.W.-13, Suman Dey

and his father Swapan Dey were returning home from

Garurband market. En route to home, when they reached in

front of the temple of 'Pagalimashi', his father uttered a

word 'kitare' (what happened). At that instance, Gautam

Datta struck on the head of his father with a Bamboo stick.

He started shouting, when, his mother Banti Dey (P.W.-2)

had appeared at the place of occurrence before Gautam

Datta inflicted blows on the head of his father. Titan Das

told his associate to kill his father. His mother jumped over

the body of his father to save him but respondents No.2 to

6 started assaulting his father with bamboo sticks. His

father was taken to hospital by his mother with the help of

his maternal uncle. What emanates from the statement of

PW-13 is that his mother Banti Dey arrived at the place of

occurrence before the blow was given by Gautam Datta and

other accused-persons and deceased Swapan Dey arrived

near „Pagalimashi temple‟ before the arrival of Bunti.

27.1. At the same time, P.W.-13 stated that when his

father arrived at the place of occurrence and uttered the

word 'kitare' at that time, Gautam Datta struck him when

he shouted raising alarm. Therefore, the first part of his

statement in respect of the circumstance that Gautam Datta

had struck his father just after utter the word 'kitare' is

found to be contradictory to his later part of the statement

that his mother, Banti arrived at the spot before Goutam

Datta struck his father. It is further noticed that P.W.13

stated a different story what he made in his earlier

statements recorded by both the IOs and Magistrate.

Therefore, we find force in the submission of the learned

counsel appearing for the respondents No. 2 to 6 that there

are lots of exaggeration in the version of the prosecution

witness, like P.W.-13 having different version before the

I.Os, Magistrate as well as before the Court.

27.2. Another striking feature is that P.W.-13 stated

that after hearing his shouting, his mother, Banti Dey came

to the spot and having noticed she jumped over the body of

his father to save him. The prosecution witnesses, like

P.W.-3, Tapan Bhowmik, P.W.-8, Shyamal Bhowmik, P.W.-

9, Prasenjit Bhowmik, P.W.-10, Chinmoy Bhowmik stated

that they had also seen Banti Dey to jump over the body of

her husband, Swapan Dey when the respondents No.2 to 6

were inflicting blows by lathi, iron rod, etc. Naturally, if that

be so, then, Banti must have sustained injuries on her

person. But, there is no evidence that Banti had suffered

injuries out of that incident, which, according to us, throws

light to suspect the very genesis of the prosecution case in

implicating the respondents No.2 to 6 with the alleged

crime. In our opinion, learned Addl. Sessions Judge was

correct in his approach in discarding the evidence of

P.W.13.

28. The learned Addl. Sessions Judge has rightly

held that when P.W.2, P.W.3, P.W.8, P.W.9 and P.W.10

stated in their evidence that there were several blows

inflicted by the respondents No.2 to 6 upon the person of

the deceased-Swapan Dey, but, the medical evidence

including the inquest report and post-mortem examination

report did not support this version of the prosecution

witnesses. The inquest report, post-mortem report, and the

doctor who examined the deceased deposed that they found

a single blow on the head of the deceased and there is no

other mark of violence on the person of the deceased.

28.1. Furthermore, according to P.W.2, P.W.3, P.W.8,

P.W.9 & P.W.10, they were severely assaulted by the

respondents No.2 to 6. But, the evidence let in by the

prosecution shows that on the next day only two of them

i.e. Shyamal Bhowmik (P.W.-8) and Tapan Bhowmik (P.W.-

3) visited Melaghar Hospital when doctor examined them

and discharged them after giving first aid. The doctor,

P.W.11 opined that she found no external injuries on the

person of Sri Shyamal Bhowmik and after examination of

Tapan Bhowmik, she found two injuries, minor in nature.

She identified her report as Exbt-5 and Exbt-6. Under these

circumstances, the learned Addl. Sessions Judge came to a

finding that the version of P.W.-2(Banti Dey) was not

reliable in respect of the fact that they were brutally

assaulted by the respondents No.2 to 6.

29. Again, from the evidence of P.W.-2, it transpires

that when she rushed to the spot she found respondents

No.2 to 6 had been assaulting her brother, Tapan Bhowmik

brutally, and during that time her husband, Swapan Dey

arrived at the place of occurrence; meaning thereby, her

husband came to the place of occurrence after her arrival at

the place of occurrence. Not only that already there were

incidents of assault between the brothers of P.W.-2 and

respondents No.2 to 6. While P.W.13 stated that P.W.-2

came to the place of occurrence after hearing the shout of

P.W.13, when Gautam Datta struck on the head of his

father. Curious enough, in the cross-examination, P.W.-2

further confirmed that after her arrival, the deceased-

Swapan Dey arrived at the place of occurrence.

29.1. Again, from the evidence it transpires that in the

FIR the informant (P.W.-2) stated that the incident took

place at Garurband market while at the time of deposition,

P.W.2 & P.W.13 and other witnesses stated that the alleged

incident took place in front of the temple of 'Pagalimashi'.

The first I.O. drawing the hand-sketch map of the place of

occurrence has mentioned that the place of occurrence is

situated in the school field of Garurband Madhyamik

Vidyalaya and not at Garurband market. According to the

hand-sketch map, the temple of 'Pagalimashi' is situated at

a distance of about 10 yards towards the eastern side of the

place of occurrence. For such shifting of scene of crime we

cannot take a different view than that of the view of the

learned Addl. Sessions Judge that the prosecution has failed

to prove the actual place of the crime.

29.2. In this regard, we find another serious

discrepancy when P.W.-10 deposed that while he was in his

grocery shop at Garurband market at 07.30 PM he heard a

quarrel between his cousin brother, Shyamal Bhowmik and

Badal Datta at Garurband market on the issue of refund of

money. So, considering the evidence of this witness, it can

easily be said that the alleged quarrel started at Garurband

market and not in front of the temple of 'Pagalimashi'.

30. Another striking feature what we have noticed is

that according to P.W.3, Tapan Bhowmik, he came to the

place of occurrence before Banti Dey (P.W.2) came there.

P.W.2 stated that she found the respondents No.2 to 6 were

assaulting Tapan Bhowmik, Shyamal Bhowmik and Chinmoy

Bhowmik when she went to the place of occurrence. While,

P.W.8 Shyamal Bhowmik stated that out of an altercation

between him and Badal Datta, he was called in front of the

temple of 'Pagalimashi' where the respondents No.2 to 6

assaulted him by fists and blows and thereafter, Tapan

Bhowmik and Chinmoy came there when the accused

persons also assaulted them. P.W.9, Prasenjit Bhowmik

stated that on the date of the incident after hearing hue and

cry he rushed to the place of occurrence and found his

brother-in-law, Swapan Dey was lying on the ground with

bleeding injuries and he also saw Banti Dey over the body

of the Swapan Dey. But surprisingly, P.W.9 failed to

disclose regarding the presence of Shyamal Bhowmik,

Chinmoy Bhowmik and Tapan Bhowmik at the place of

occurrence at the time of the alleged crime.

31. Under these circumstances, the learned Addl.

Sessions Judge came to the finding that their evidence

appeared to be absolutely doubtful and could not earn any

confidence in respect of their truthfulness.

32. Furthermore, though P.W.9 has stated that he

found the victim Swapan Dey laying on the ground with

bleeding injuries, but, it appears that none of the

investigating officers felt it necessary to collect the

bloodstained earth from the place of occurrence or seized

the wearing apparels of the deceased for the purpose of

forensic examination to substantiate the allegation of the

informant as well as to confirm the place of occurrence.

33. In view of above major irreconcilable

discrepancies, we find no error in the findings of the learned

Addl. Sessions Judge that the investigation of the instant

case has not been assailed fairly.

34. In the light of above, in our ultimate analysis,

and on reappraisal of the evidence and materials brought

on record, we are unable to form a different view than that

of the view taken by the learned Addl. Sessions Judge in

acquitting the respondent Nos.2 to 6 from the charges

levelled against them since the view as taken by the Trial

Court appears to be possible and plausible, and such

findings cannot in any way be said to be perverse to call for

interference of this Court by adopting an alternative view.

35. As we have already held that the prosecution

evidence does not inspire our confidence and there is no

ground to reverse the findings returned by the learned

Addl.Sessions Judge, we refrain from burdening this

judgment by way of discussing the impact of two FIRs and

the investigation carried out on the basis of the subsequent

FIR lodged by P.W.2, Banti Dey, and as to the question of

law, whether the subsequent FIR is hit by Section 162 of

Cr.P.C. However, lodging of two FIRs aptly proves that

there was clash between the respondent Nos.2 to 6 and the

prosecution witnesses Nos.2, 3, 8, 9 & 10. But, prosecution

has failed to remove the cloud emerged regarding the

circumstance who had given the fatal blow to the deceased

Swapan Dey.

36. For the reasons stated above, both the appeals

filed by the complainant-appellant as well as the State-

appellant have failed to impress us, necessary to reverse

the findings of acquittal of respondent Nos.2 to 6 as

returned by the learned Trial Judge.

37. Accordingly, both the appeals as aforestated

stand dismissed.

Send down the LCRs.

           (ARINDAM LODH,J)                (AKIL KURESHI,CJ)




suhanjit