Prabir Mondal & Anr vs State Of West Bengal

District of Murshidabad, West Bengal. The learned 2

Sessions Judge convicted the three accused under

Section 307/34 I.P.C. and sentenced each of them to

suffer rigorous imprisonment for 10 years and to

pay a fine of Rs.1,000/-, and, in default, to

suffer rigorous imprisonment for one more year.

3. Aggrieved by the judgment of conviction and

sentence passed by the learned Sessions Judge, the

appellants, along with Mongal Das, filed an appeal

before the High Court, being C.R.A.No.343/87. By

its judgment dated 30th June, 2008, the High Court

dismissed the appeal and confirmed the judgment of

the learned Sessions Judge. Although, there were

no eye-witnesses to the incident and the conviction

was based on circumstantial evidence, the High

Court was of the view that the circumstantial

evidence, and in particular, the evidence of the

victim would conclusively show that the accused

were involved in the incident. Even the fact that

the victim had not informed the doctor, who was 3

examined as "P.W.7", as to how the incident had

happened, was not given much importance by the High

Court.

4. Appearing for the appellants, Mr. Pradip Ghosh,

learned Senior Advocate submitted that while

disposing of the appeal, the Hon'ble Judges of the

High Court did not deal with the evidence adduced

on behalf of the prosecution and disposed of the

appeal on a general reference to the same. Mr.

Ghosh submitted that the evidence adduced on behalf

of the prosecution, including the evidence of

P.W.1, the victim, would clearly establish the

absurdity of the prosecution case. Mr. Ghosh urged

that even the evidence of the doctor (P.W.7) had

not been considered by the High Court, although,

the same had a significant bearing on the veracity

of the prosecution case.

5. Mr. Ghosh urged that although the incident is

said to have occurred at about 11.00 p.m. in the 4

night of 6th September, 1982, the same was reported

to the Berhampore Police Station only at 9.45 a.m.

on 7th September, 1982, after the lapse of about 11

hours. From the First Information Report, Mr.

Ghosh also pointed out that although the complaint

was lodged on 7th September, 1982 at 9.45 a.m., the

same was dispatched to the learned Magistrate the

next day at 8.00 a.m., after an interval of one

day. According to Mr. Ghosh, such delay spoke

volumes of the manner in which the prosecution had

built up its story, which in itself belied the

prosecution case.

6. Turning to the evidence of P.W.1, Kashem Sk.,

the victim, Mr. Ghosh pointed out that according to

the said witness he had gone to the Berhampore

General Hospital for treatment immediately after

the incident between 1.00 and 1.30 a.m. on 7th

September, 1982. From the hospital, instead of

going to the police station for lodging the First 5

Information Report, he claimed to have gone home

and went to the police station for the said purpose

at 8.00 a.m., which gave him sufficient time to

involve and implicate the appellants and Mongal Das

in the incident on account of previous enmity.

7. Mr. Ghosh also pointed out from the evidence of

P.W.1 that the incident as narrated was hard to

believe since it was the case of the victim that

while he was sleeping in the pump room in question,

the Appellant No.1 pressed his mouth with his hand

while Mongal Das held two ends of the knife to cut

the throat of the victim. In cross-examination,

P.W.1 also deposed that he had caught hold of the

middle portion of the knife with both hands and

that on account of the same he had sustained cut

injuries on the palm of his left hand. Mr. Ghosh

submitted that the said story was not consistent

with the injury report which was prepared by P.W.7

on 7th September, 1982. According to the said 6

report, P.W.7 had examined Kashem Sk. at 1.45 a.m.

in the Berhampore General Hospital where he was

posted as Medical Officer. According to him, there

was one incised wound on the left side of cheek 2="

x 1/6" skin deep starting from the left half of the

upper lip. He also found one minor abrasion over

the right palm =" x 1/6" and was of the view that

the first injury may have been caused by a sharp

edged weapon while the latter injury over the right

palm might have been caused by a blunt object. Mr.

Ghosh submitted that there was no mention

whatsoever of any incised injury either on the left

palm, as was claimed by the victim in his evidence,

or in the right palm, which not only disproved the

evidence of the victim but gave rise to serious

doubts as to whether the incident had at all

occurred in the manner suggested by the

prosecution. According to Mr. Ghosh, in the

opinion of P.W.7 even the injury on the left cheek

of the victim could have been caused by a sharp 7

pointed bamboo strip.

8. Mr. Ghosh then referred to the evidence of

P.W.1, the alleged victim, where he has said that

Krishna was holding the handle of the knife and

Mongal took the other end and both of them touched

his throat in order to kill him and that in order

to prevent them from doing so, he resisted and as a

result, the knife touched his left cheek causing

injuries on his left cheek, as indicated

hereinabove. Mr. Ghosh also referred to the cross-

examination of P.W.1, wherein he had mentioned that

he had caught hold of the knife with the palm of

his left hand and had sustained cut injury, which

was contrary to the injury report which shows that

P.W.1 had not received any cut injury on his left

hand and the injury that had been caused on his

right palm was by a blunt instrument. Our

attention was also drawn to the story made out by

P.W.1 that after going to the hospital and 8

narrating the incident to the neighbours, he had

left for home and in the early morning at about

4.00 a.m. along with P.W.2, P.W.3, P.W.5, P.W.6 and

one Maniruddin, he had gone to the Berhampore

Police Station and after giving the statement he

also deposited a knife with the police station.

Mr. Ghosh drew our attention to the last portion of

the cross-examination of P.W.1, wherein he stated

that he had taken the knife which had been used to

try and murder him to the hospital also. From the

hospital, P.W.1 stated that he went home with the

said knife, and, thereafter, in consultation with

the neighbours and relations, he again went to the

police station with the said knife and deposited

the same at the police station at 9.45 a.m.

9. For the purpose of proving the falsity of the

prosecution case, Mr. Ghosh also referred to the

deposition of P.W.2, Yeasin Sk., who was a seizure

witness and claimed that the Investigating Officer 9

had seized one sword and after preparation of the

seizure list, he had signed the same.

10. Reference was also made to the deposition of

P.W.3, Shanti Bibi, the sister-in-law of the victim

Kashem Sk., whose evidence was merely hear-say

evidence and besides stating that she found three

persons fleeing away to the southern side, she

also stated that she did not find anybody

assaulting Kashem Sk. at the relevant time.

11. Mr. Ghosh then referred to the evidence of Dr.

Swapan Baral (P.W.7) to indicate contradictions in

the evidence of Kashem Sk. in relation to the

injuries alleged to have been inflicted on him by

the appellants.

12. Mr. Ghosh lastly referred to the evidence of

P.W.8, Biswanath Sarkar, who conducted the

investigation. According to him, he visited the

shallow pump room and seized one blood stained pati 10

(a small mat made of date palm leaves), one old

pillow and one hanshua with broken handle having

some cracks. In answer to a query by the Court,

the said witness also submitted that one big knife

was seized from the complainant Kashem Sk. at the

police station. The said witness also admitted

that none of the seized items were sent to the

forensic laboratory for examination and it was not

possible to say whether the said mat had been

stained with human or animal blood. He also

admitted that he could not procure the original

injury report signed by Dr. Swapan Baral.

13. Mr. Ghosh urged that there was no explanation

for the delay in lodging the FIR and that according

to the evidence of P.W.1, he had gone home and

consulted the neighbours and relations and had,

thereafter, lodged the FIR, giving rise to serious

doubts about the genuineness of the complaint.

Mr. Ghosh referred to a decision of this Court in 11 Rajeevan vs. State of Kerala [(2003) 3 SCC 355],

where such a delay was held to cause sufficient

doubt about the genuineness of the FIR.

14. Learned counsel lastly submitted that it was

extremely surprising that when visiting the doctor

for treatment, P.W.1 did not even mention about the

incident to the doctor or as to how he had received

the injuries on his person. Mr. Ghosh urged that

from the state of the evidence, it was not possible

to find the appellants guilty of the offence under

Section 307 read with Section 34 IPC and sustain

the sentence imposed on the appellants on account

thereof.

15. Mr. Satish Vig, learned Advocate, who appeared

for the State, submitted that the prosecution had

successfully proved its case and there was no

reason to disbelieve the evidence of P.W.1, the

victim, who had sustained injuries during the

attempt made by the appellants to kill him. He 12

submitted that the very fact that the victim had

sustained injuries on his left cheek was sufficient

to indicate that the incident had, in fact, taken

place. Even as far as identification is concerned,

Mr. Vig submitted that it was a moonlit night and

it was not, therefore, difficult for P.W.3, Shanti

Bibi, to identify the three people, she saw running

away from the scene of the occurrence. He also

submitted that it is quite possible, after a

traumatic experience, for a victim to make a few

mistakes while making his statement, but as

observed by the Division Bench of the Calcutta High

Court, such omission, including the question as to

whether he had told the doctor about the incident

or not, would not warrant acquittal of the

appellants when the incident was proved through

other witnesses. Mr. Vig also submitted that the

delay of 12 hours in lodging the FIR could not be

said to be fatal to the prosecution case, since the

victim had to first attend the hospital to treat 13

his injuries, and, thereafter, on returning home

and resting for a while, he along with several

others left for the police station where the FIR

was lodged.

16. Mr. Vig submitted that no case had been made

out on behalf of the appellants for interference

with the judgment and order of the High Court.

17. Having considered the submissions made on

behalf of the respective parties and after going

through the materials on record, we are inclined to

accept Mr. Ghosh's submissions that the case made

out by the prosecution appears to be improbable and

the conviction of the appellants was not in

conformity with the evidence adduced on behalf of

the prosecution.

18. The main pillar of the prosecution case is

P.W.1, Kashem Sk., the complainant himself. 14

19. As pointed out by Mr. Ghosh, the manner in

which the alleged incident is supposed to have

taken place does not fit in with the injuries

received by the complainant. The most glaring

inconsistency is the story of the complainant's

having held the blade of the knife, alleged to have

been used in the commission of the offence, with

both hands and thereby suffering incised injuries

on his left palm. The injury report shows that the

complainant did not have any incised injury or any

other injury on his left palm and the injury to his

right palm was not of an incised nature, but a

bruise which could have been caused by a blunt

instrument. Moreover, the knife, which was seized

and was alleged to have been used for the

commission of the offence, was never sent for

forensic examination so as to connect it with the

offence. Furthermore, the other sharp-cutting

implements, which were also seized, were also not

sent for such examination. Even the mat which had 15

blood stains on it was not sent for such

examination and it could, therefore, not be proved

as to whether the blood stains thereon were of

human or animal origin. Coupled with the above is

the fact that on going to the hospital in the night

for medical treatment, the complainant did not even

disclose to the doctor as to how he had sustained

the injuries. The doctor was, therefore, not at

all aware of any such incident, as presented by the

prosecution, having been committed. Coupled with

the above is the fact of the delay in lodging the

FIR after consultation with the local villagers.

Therefore, chances of fabrication in the FIR cannot

be ruled out.

20. Neither the Trial Court, nor the High Court,

appears to have looked into these details properly.

We, therefore, have no hesitation in setting aside

the judgment of conviction and sentence imposed by

the Trial Court and upheld by the High Court. 16

21. The appeal is, accordingly, allowed. The

appellants be released forthwith.

................................................J. (ALTAMAS KABIR)

...................................................J. (CYRIAC JOSEPH)

...................................................J. (ASOK KUMAR GANGULY) New Delhi Dated:28.10.2009.