JUDGMENT
H.K.K. Singh, J.
1. Heard the learned P.P.
2. This Appeal is directed against the judgment and order of conviction and sentence by the learned Session Judge, North Kailashahar on 11.4.1996 in Sessesions Trial No. 2(NT/K)95 by which the appellants were convicted under Section 304 Part II read with Section 34 IPC and sentenced to undergo 7 years R.I., under Section 326 read with Section 34 IPC sentencing them to undergo six months’ R. I. under Section 323 read with Section 34 IPC.
3. The three accused persons along with three others (altogether six accused persons) ware tried for the offence under Sections 148, 302, 326 and 323 read with Section 149 IPC for causing death of one Binanda Nath Choudhury, grievous hurt to Smt. Sandhaya Nath Choudhury and simple hurt to Ranjit Nath Choudhury in the night between 21.9.1991 and 22.9.1991. On trial, out of the six accused persons, the three accused appellants namely, (1) Shri Kshirode Chandra Debnath, (2) Shri Rabindra Malakar (alias Rabi Malakar) and (3) Shri Gopal Debnath were convicted and sentenced as mentioned above and the remaining accused persons were acquitted by the learned Session Judge. Hence the present Appeal has been filed by the above named three convicts.
4. The prosecution relied upon the oral evidence of direct eye witnesses of whom two are the victims of the crime, which was supported by the witnesses who rushed to the place of occurrence just after the occurrence and the statements of these witnesses were sought to be supported by the medical evidence including the opinion of the Doctors who examined the victims and also conducted Post Mortem examination, PW Nos. 1, 2, 3 and 4 are the family members of the deceased Binanda Nath Choudhury of whom PW Nos. 2 and 3 are the injured person PM No. 1 is the informant and the PW No. 4 is the daughter of the informant, PW Nos. 5 and 9 are local villagers who rushed to the place of occurrence just after the incidence. PW Nos. 6, 7, 13 and 14 are the Doctors who examined the patients and PMs. 8, 11 and 12 are the police officers.
5. PW No. 1 who is the informant in this case is the son of the deceased, Binanda Nath Choudhury. According to him, in the night of the 4th day of Aswin which was Saturday at about 1.30 A.M. while he along with his family members were sleeping in their house, some persons were calling them from outside. On hearing the shout he woke up and opened the door and came out on the Verandah. He saw about 10/15 persons assembled their armed with deadly weapons like lathi and Daos, The aforesaid accused persons, namely, Kshirode Chandra Debnath, Rabi Malakar and Gopal Debnath were found standing Just in front of the southern vitti house where his father was sleeping. His son, Ranjit Nath Choudhury (PW 3), was also sleeping in that room with his father. The other persons were found standing a little distance away from them. He saw accused Rabi Malakar was holding a Ramdao in his hand, accused Gopal held a big lathi, and accused Ksherode Debnath also held a wooden lathi in his hand. In the, meantime his father Binanda Nath Choudhury woke up and came out of his room and suddenly accused Gopal Debnath gave two blows with lathi in his hands and
his father fell on the ground. On seeing that his son, Ranjit Nath Choudhury (PW No. 3) came out to rescue his grand father accused Rabi Malakar gave several blows with the Ramdao in his hands on the head of Ranjit Nath Choudhury and other parts of his body.
The witness further stated that he also wanted to go to their rescue but his daughter stopped and restrained him and so he could not go there.
But, in the meantime his wife, Sandhya Nath Choudhury, on seeing the incidence, rushed but to rescue her son and immediately accused Gopal Nath gave lathi blows on her right shoulder. Accused Debnath also gave several kicks to Ranjit, Sandhya Nath Choudhury requested the accused persons not to assault his son any further. The victims and others in the house cried and raised alarm and on hearing that all the accused persons and their party left the place. He found his father, Blnanda Nath Choudhury, lying unconscious and two other injured persons were also lying unconscious. In the meantime other villagers also rushed there. They arranged for a vehicle for taking the injured persons to the hospital for treatment and in the early rooming all the injured persons were taken to Fatikroy Primary Health Centre and the Doctors who examined the injured advised for taking Binanda Nath Choudhury to Kailashahar hospital. Thus, his father was shifted to Kailashahar hospital where his father was admitted. But the victim succumbed to his injuries on 26.9.1991 (Wednesday). The witness (PW No. 1) stated that before shifting his father to Kailashahar hospital, he went to the Fatikroy Police Station where he lodged the Ezahar and the Ezahar was written by Sunil Nath Choudhury (PW No. 9).
6. The above version of the informant is supported by the victims, Sundhaya Nath Choudhury (PW No. 2) and Ranjit Nath Choudhury (PW No. 3).
Again, PW No. 5 who is the next door neighbour of the informant who rushed to the scene of occurrence on hearing the alarm also supported the version of PWs. 1, 2 and 3. PW No. 9 who is also a neighbour to the informant also testified regarding the occurrence and he went along with the informant to lodge Ezahar at Fatikroy Police Station which was written by him on the basis of the information furnished by the informant.
7. PW No. 6 is the Doctor who examined the injured persons at Fatikroy Primary Health Centre. The Injury report, Ext. P/7 in respect of Binanda Nath Choudhury, is extracted below:
“(1) Swelling on the scalp over the left parietal bone 3″ x 2”
(2) Abrasion on the back and anterior chest wall.
(3) A cut injury on the neck size 2″ x 1/2″ x 2″ margin uneven. Fresh with active bleeding.
Patient was semi-conscious due to head injury and all the Injuries were caused by blunt and heavy weapon and that the same might be caused by wooden lathi if its size was round and nature was grievous.”
The Doctor gave his opinion that the cause of death was due to intra cranial haemorrhage following head injury and the head injury was sufficient in the normal course of nature to cause the death of the victim, and that all the injuries are of ante-mortem.
In respect of injured Sandhya Nath Choudhury the Doctor found the following injuries, Ext. P/5 which is extracted below:
“(1) A cut injury over the chin 2″ x 1/2″ x 1/2”
(2) Cut Injury of mandible bone 1cm in length.
(3) There were marks of lathi blows on the right shoulder and arm.
Details of injuries ;
(1) The cut mark over the chin had even margin. It was fresh and having active bleeding. Weapon used for this injury was heavy sharp cutting weapon and the weapon used for the other injuries were heavy blunt weapons like lathis. The out injury which was found on the chin extended to the mandible bone caused by a single blow. In my opinion that cut injury on the chin was about 2 to 3 hours old. Bleeding may occur from any cut injury even upto 10 to 12 hours after the inflicting of the injury. I did not mention in my report whether any vessel major or minor were cut due to that cut Injury in the present case. The period of bleeding mainly depends on the type of vessels injured. This exit injury over the chin might be caused by the sharp edge of a Ramdao. I had the training to examine injuries. Nature of injury the cut injury mentioned above was grievous in nature.”
In respect of Ranjit Math Choudhury the Doctor found the following injuries (Ext. P/6):
“(1) A cut injury on the scalp over the volt 2″ x 1/2″ x 1/2” with its margin even and the injury was fresh with active bleeding.
(2) Another cut injury on the left cheek 3″ x 1/2″ x 1/2″ oral cavity exposed. The margin of the cut was even. It was fresh.
(3) Two cut injuries on the right forearms 1″ x 1/2 x 1/4″ and 1 1/2″
x 1/4.” Weapon used in both the injuries was heavy sharp cutting weapon. Nature of these injuries was simple.”
The Doctor gave his opinion that the cut injuries were caused by sharp cutting by Dao and Ramdao.
8. Now coming to the Post-mortem Report, the Doctor (PW 7) who conducted the post-mortem examination, found the following, (Ext. P/8):
“On external examination of the dead body I found the dead body stout, rigirmortis was present. The external injuries were :
(1) Haemotoma 2″ x 1″ obliquely placed over the left mastoid region.
Mastoid regions means–behind the ear.
(2) Haemotoma 2 1/2″ x 1/2″ transversely placed over the lower part of the occipital region.
(3) Bruise 1″ x 1″ right deltoid region.
(4) Bruise 1/2″ x 1/2″ on the back T4 region.”
On disection on the dead body the Doctor found :
“(1) on the scalp the injury Nos. 1 and 2 above were found. Membranes were found congested. Brain substance congested. Blood present in the subdural space and at the base of the skull pressing the midbrain.
Rib, cartilage, walls and other parts were healthy, Layrix, lungs and trachoea congested. Other organs found healthy.”
9. Mr. P.K. Biswas has challenged the decision of the learned Sessions Judge on many grounds, and the learned counsel has taken me through the evidence adduced in the trial and also other matter and materials found in the records.
10. The learned counsel has submitted that the FIR (Ext. P/1) in this case is not admissible in law inasmuch as that there was an earlier ezahar lodged with regard to the same occurrence and as such Ext. P/1 is hit by Section 162 Cr.PC. Inviting my attention to the statement of the Investigating Officer (PW No. 12), it was submitted that one Sallen Debnath gave an oral information to the Duty Officer of the Police Station on 22.9.1991 at 6.3 A. M. that some unknown miscreants attacked the house of Binanda Nath Choudhury in the previous night and some house inmates received cut injuries at the hands of those unknown miscreants and that the information was entered into the General Dairy Book vide entry No. 725 dated 22.9.1991. As the information disclosed a cognizable offence, the
Officer in-charge of the Police Station had no option but to register a case on the basis of the said information as a FIR. As a FIR had already been registered, the subsequent FIR at Ext. P/1 is not admissible in evidence under law. In support of his submission the learned counsel also relied upon many decisions including the decision of the Apex Court rendered in the case of State of Haryana and Ors. Appellants v. Ch. Bhajanlal and Ors. Respondents reported in AIR 1992 SC 604, Again, it was submitted by the learned counsel that in the course of the trial the defence even filed application to the learned Sessions Judge for causing production of the concerned General Dairy Book for perusal of the court but, the prayer was rejected by the learned Sessions Judge.
11. On point of law it is true that once a report disclosing the commission of a cognizable offence has been lodged clearly indicating the particulars to enable the officer in-charge of the Police Station to register an FIR, the mandate of law as provided under Section 154 of the Cr.PC is that a case has to be registered on the basis of the information. Once a case has been registered, any other ezahar/report regarding the same occurrence is not admissible as it is hit by Section 162 Cr.PC. But the question as to whether a case should be registered on the basis of the earlier information depends upon the facts though it is not necessary that name of the culprits should be disclosed in the FIR. But the requirement of Section 154(1) Cr.PC is to be satisfied for the purpose of registering an FIR. In the present case though full particulars of the informant is not clearly given, the information that the house has been attacked by miscreants and some inmates received injuries discloses a cognizable offence. Thus, the submission of the learned counsel for the defence cannot be brushed aside. Again, the aforesaid informant, Sallen Debnath, was never produced before the court nor the concerned General Dairy Book.
12. Now, the question is whether the entire case which was initiated on the basis of the FIR, Ext. P/1 should be quashed. In my opinion the answer depends upon the facts and circumstances of the case. In a given case if the FIR is found to be inadmissible in law, but the evidence on record and other materials clearly prove the commission of an offence by the accused, the conviction of the accused may stand if no prejudice has been caused to the accused.
13. Mr. P.K. Biswas, further, submitted that two other important witnesses, namely. Smt. Bishakha Nath Choudhury and Ashish Debnath who were cited by the prosecution as witnesses and they even appeared before the court, but the prosecution did not examine them as witnesses, so also the aforementioned Sailen Debnath who lodged the FIR to the police was not produced at the time of trial.
14. Regarding non-examination of any witness by the prosecution, it is the prerogative of the prosecution to examine or not to examine any witness though in appropriate cases, for the ends of justice the court may examine any witness in exercise of power under Section 311 Cr.PC. But the defence may not be permitted to cross examine any witness who has not been produced and examined by the prosecution. Only when those witnesses are examined by the court under Section 311 Cr.PC, the defence may have the right to cross examine them.
15. Mr. P.K. Biswas also challenged the version of the prosecution witnesses regarding the source of light from the two electric bulbs submitting that this important fact of existence of electric light was not mentioned in the FIR and for the first time the witnesses testified before the court regarding the existence of the said electric bulbs at the scene of the occurrence and they have not even mentioned this fact in their statements recorded under Section 161 Cr.PC, and for such an omission of a vital fact which amounted to contradiction the prosecution witness (PW 1) contradicted on this point, still, the witness could not give any explanation in this regard though the PW No. 1 has admitted that there has been no electric connection since thereafter. Again, in the sketch map prepared by the Investigating Officer nothing is disclosed regarding existence of the aforesaid electric bulb point/pole. The learned counsel referred to the decision of the Apex Court in the case of State of Rajasthan, Appellant v. Bhola Singh and Anr. Respondents reported in AIR 1994 SC 542 and another decision in the case of State of Punjab, Appellant v. Sohan Singh and Ors. Respondents reported in AIR 1974 SC 300.
16. The learned P.P. has submitted that considering the totality of the evidence, the findings reached by the learned Sessions Judge, may not be interfered with by this appellate court. The learned P. P. further submitted that the irregularities concerning lodgment of the Ezahar is not enough to set aside the conviction. He also submitted that- the point regarding non-examination of some of the witnesses and also regarding the source of electric light are only matter of appreciation of evidence.
17. In the case at hand, the occurrence took place at late night and according to the witnesses the two electric bulbs were the only source of light for the purpose of identification of the accused. The witnesses never stated anything regarding any other source of light to enable them to identify the accused. It is also in evidence that many big trees are growing near and around the place of occurrence. It is not the case of the prosecution that they could identify the accused from their voices. The witnesses have deposed regarding the sequence of
various acts of assault made by the three accused persons in that late night. The accused came in a group of about 10/15 persons and in such a case of attack by a group of persons, the identity of the accused persons are of vital importance.
Considering the nature of the assault, it may not be possible for the witnesses to describe various individual acts and the sequence of acts committed by different accused, but the identity of the accused who participated in such an assault has to be established beyond any doubt. As noted above, in the aforesaid Sailen Debnath it was mentioned that some unknown persons attacked the house of the victims and the report was made at about. 6.30 A.M. of the next day of the occurrence and at about 12.30 P.M. the FIR, Ext. P/1, was lodged in which the names of only three accused persons are mentioned and subsequently three other persons were added at the time of submission of the charge sheet. The prosecution never explained regarding the establishment of the identity of the three other accused persons for the purpose of inclusion at the time of submission of the charge sheet. Again, the prosecution witnesses stated that all the other members of the group were standing some distance away from the three accused appellants. Thus, considering this aspect regarding the establishing the identity of the accused, a doubt is always there and as noted above no other villager except those mentioned, rushed to the place of occurrence even though in the sketch map prepared by the Investigating Officer there are many dwelling houses just near the place of occurrence and the prosecution has not produced those important witnesses as mentioned above. This also creates some doubts in the prosecution case. Accordingly, the case of the prosecution is not free from any doubt. Resultantly, the accused are entitled to the benefit of doubt.
18. For the aforesaid reasons and conclusion, the findings of conviction recorded by the learned Sessions Judge cannot stand. Accordingly, it is set aside. The accused are, therefore, acquitted of the charge framed against them or of any other offence. They are on bail, to which they need not surrender.
19. This appeal is allowed.