JUDGMENT
Nripendra Kumar Bhattacharyya, J.
1. This appeal is directed by the accused persons against the conviction and sentence under Section 302/34 Indian Penal Code passed in the judgment in Sessions Trial No. 12 of 1991 by the learned Additional Sessions Judge, 3rd court, Burdwan whereby the learned Sessions Judge imposed the sentence of life imprisonment for both the accused persons.
2. The prosecution case, in short, is that on 19th Magh, 1394 B.S. corresponding to 3rd February, 1988 B.S. accused Madhusudan Sen and Kartick Sen committed murder intentionally causing the death of Panchanan Nayek son of late Kalipada Nayek at Sundarpur, P.G. Kalna, District Burdwan.
3. The further case of the prosecution is that the houses of de facto complainant Nidhu Bala Nayek and the accused persons are facing each other divided by a courtyard. The two accused person, namely, Madhusudan Sen and Kartick Sen are the sons of Sarashi Sen and one Tusu Bala Sen is their sister. On the fateful day immediately after the break the said Tusu Sen was sprinkling water mixed with cowdung and during the time of such sprinkling of the said water it was sprinkled upto the varandah of the de facto complainant Nidhu Bala Nayek. Nidhu Bala’s daughter-in-law Sakshi Nayek and the wife of deceased Panchanan Nayek protested for such work of Tusu Sen and immediately Kartick Sen with a stick ran towards Sakshi Nayek to assault her. At that time Panchanan Nayek came there from outside and both the de facto complainant and Sakshi Nayek reported him about the incident. At that time Kartick Sen was also standing there with a stick. On hearing the incident and seeing Kartick Sen standing there with the stick Panchanan became excited and said that his wife (Sakshi Nayek P.W.3) and mother {Nidhu Bala Nayek P.W. 1) did not commit any wrong then who had given the right to attempt such assault on them and if such assault committed he will see to it. At that time Madhusudan, elder brother of Kartick, came forward with a Iron crowbar and Panchanan slapped Madhusudan and then Madhusudan hit Panchanan on the head with the iron crowbar.
4. Panchanan had fallen on the courtyard in front of the room of the de facto complainant. Then Kartick Sen started assaulting Panchanan with the stick. There was no male member in the de facto complainant’s house then. The complainant and Sakshi Nayek raised alarm “Banchao Banchao”. Then Tapas Kumar Sardar son of Sital Prosad Sardar (P.W.6), one Shakti Sen son of late Khudiram Sen, Swapan Sardar son of Sital Prosad Sardar, Sial Prosad Sardar son of late Gopal Sardar {P.W. 5) all of village Sondalpur came there running and saw Panchanan lying in the courtyard in front, of the room of the de facto complainant. They also saw Kartick Sen assaulting Panchanan. At that time Madhusudan Sen entered his room with the iron crowbar. Tapas Kumar Sardar and another 3 persons named above heard about the incident from Nidhu Bala Nayek and Sakshi Nayek. Being attracted by the alarm raised by P.W.I and P.W.3 the other neighbours, namely, Ananta Kumar Sardar, Bhibuti Sen son of late Patal Chandra Sen, Anil Kumar Sardar and Madhab Sen all of village Sondalpur came to the house of the de facto complainant Nidhu Bala Nayek and saw panchanan lying in the courtyard and they heard all about the incident from Nidhu Bala Nayek and Sakshi Nayek. Then Bhibuti Sen, Anil Sardar and Madhab Sen removed Panchanan to Madhupur (Atgharia) hospital for treatment and the doctor in that hospital declared Panchanan dead.
5. There was previous enmity between the said two families over the messuage and so many litigations were pending over the same. Very often there were quarrels over the same. Out of that motive, it is alleged, Kartick Sen and Madhusudan Sen murdered Panchanan.
6. One Sujoy Singha Roy (P.W.7) came to the spot on that date at 9 A.M. on getting the information from local villagers and Nidhu Bala Nayek reported the incident to him and he recorded her statement in a plain paper and made over the same to Nidhu Bala Nayek and Nidhu Bala Nayek put her L.T.I. on the same. The police did not arrive in the spot then. He proved his writting which was subsequently treated as F.I.R. Exbt.2. He also attested the L.T.I, of Nidhu Bala exbt. 2/1. He found the dead body of Panchanan. The police came there sometime thereafter and the I.O.(P.W. 10) also held inquest over the dead body of Panchanan and as a witness he signed the inquest report.
7. According to Bhibuti Sen (P.W.4), he along with Mahadeb and Anil took Panchanan to Madhupur Primary Health Centre and on examining Panchanan the doctor there declared him dead. The doctor made his report and gave a copy to Bhibuti Sen for delivering the same to the police station and he did so. During the time of inquest Bhibuti Sen (P.W.4) was present and he signed on that inquest report. The dead body was sent for P.M. examination through Constable No. 1574 Kundaram Murmu, then attached to Kalna P.S., to Kalna Sub-Divisional Hospital and he identified the dead body to the doctor C.R. Sengupta (P.W.8) and the dead body was brought to that hospital in connection with Kalna P.S. U/D Case No. 15 dated 3-2-88. On examination the doctor (P.W.8) found as follows:-
(1) Rigormortls on the dead body was present on both limbs. The deceased was average built. He was bleeding from nose and left ear. He had lacerated would over right parietal bone about 2″ x 1/4″.
(2) Abrasions over the left elbow.
(3) Abrasions over the left chest-wall 2″ x 1″. On dis-section he found the following injuries on the dead body.
(4) The skin and sub-cutanious tissue and mussles are inflicted with blood and clots. On further dis-section be found fracture of right parietal bone. On removal of the parietal he found blood and clots of blood in duramater.
8. The doctor opined that death was due to shock and haemorrhage (Head injury) as a result of injuries mentioned earlier. There are antemortem and homicidal in nature. He also opined that the injury could have been caused by a heavy blunt weapon like iron crowbar (wrongly translated as slovel). The abrasions over other parts of the body could be caused by assault.
9. On 3-2-88 Sri Janardan Chakraborty (P.W.10) was attached to Kalna P.S. as Sub-Inspector of Police. On that day on receipt of an information over telephone at 9-30 A.M. to the effect that one Panchanan Roy of Sundarpur was murdered he recorded a G.D. of the same being G.D. No. 96 dated 3-2-88 and then under the direction of the O.C he took up the investigation and went to the spot with the force. He reached the house of Panchanan of village Sundarpur at 11.05 hrs. and found two accused Madhusudan and Kartick kept detained there. At that time the de facto complainant Nidhu Bala Nayek handed over to him one written complaint. On getting the same he had gone through the written complaint and interrogated the accused persons who brought out one iron crowbar and one lathi from inside the house in presence of the villagers assembled there. He seized those two weapons under a seizure list (exb. 1) and he put on it his signature and endorsement exbt. 1/2. The seizure list was made in presence of the witnesses. The iron crowbar is mat. exbt. I and the stick is mat. exbt.II. He then arrested the accused persons and sent them to the Kalna Police Station along with the written complaint and the seized weapons. He then went to the Atghoria Primary Health Centre and there he found the dead body of Panchanan. He made inquest over the dead body in presence of the witnesses. Before holding inquest he contacted the O.C. Kalna P.S. over telephone who supplied the U/D Case No. and inquest report was prepared in connection with the U.D Case No. and after inquest he sent the dead body under escort of constable No. 1574 Kundaram Murmu. for post mortem examination. He then examined the witnesses. Later he collected the P.M. report and also the injury report from Atghoria P.H.C. and after completion of the investigation he submitted charge-sheet against the accused persons.
10. The case was committed to the Court of Sessions and Sessions Case No. 177 of 1990 was started and then the trial commenced being Sessions Trial Case No. 12 of 1991 in the court of the 3rd Additional Sessions Judge, Burdwan.
11. The said learned Additional Sessions Judge framed the charge against the accused persons for offence under Section 302/34 IPC and ultimately convict and sentence the accused persons for the said offence and ordered them to suffer life imprisonment.
12. In order to bring home, the charges against the accused persons the prosecution examined 11 witnesses. Of whom de facto complainant is Nidhu Bala Nayek (P.W.I) Dr. Ashish Kr. Bhattacharjee (P.W.2) attended Panchanan in the P.H.C. at Atghoria, village Madhupur and declared him dead. Sakshl Nayek (P.W.3) is the daughter-in-law of Nidhu Bala Nayek and widow of deceased Panchanan. Bhibuti Sen (P.W.4) claimed himself to be an eye witness of the incident. P.W.5 Sital Sardar, P.W.6 Tapas Sardar stated to be the eye witnesses of the incident by Nidhu Bala Nayek and Sakhi Nayek. Sujoy Singha Roy (R.W.7) wrote the complaint as per the dictation of Nidhu Bala Nayek and saw the dead body of Panchanan. Dr. C.R. Sengupta (P.W.8) held post mortem examination over the dead body of Panchanan.
13. Sk. Mainuddin (P.W.9) was attached to Kalna P.S. as an A.S.I. of Police on 4-2-88 and on that date he seized one half-sleev blue coloured ganji, one chalklet colour lungi being brought by constable No. 1574 Kundaram Murrau from the morgue under a seizure list which was prepared in carbon process. The seizure list is exbt. and his signature on it is exbt.3/1.
14. P.W.10, Sri Janardan Chakraborty is the I.O. P.W.ll is Anil Chandra Das, Assistant Sub-Inspector of Police was attached to Kalna P.S. on 3-2-88 and he recorded G.D. entry No. 96 dated 3-2-88 on receiving the information from one Harun Mondal (exbt.4). After recording the said G.D. entry, he passed over the information to Officer-in-Charge of Police station and the Officer-in-Charge entrusted the investigation to SubInspector Janardan Chakraborty (P.W. 10).
15. In the F.I.R. Bhibuti Sen (P.W.4) has not been named as a witness but the de facto complainant in her cross-examination stated that Bhibuti Sen is her neighbour and as of village courtesy he is to call her as motherin-law. Bhibuti Sen has also not been named by another eye witness Sakhi Nayek (P.W.3).
16. So there are only two eye witnesses namely (P.W.I) Nidhu Bala Nayek and (P.W.3) Sakhi Nayek. Both of them in their evidences deposed that as they raised alarm after the incident Sital Sardar (P.W. 5) and Tapan Sardar (P.W. 6) came there and they saw part of the incident. Both Sital and Tapas have been declared hositile by the prosecution. Both of them deposed that they did not go to the house of Panchanan during the time of quarrel but went there at about 11/12 noon.
17. From the F.I.R. we have pointed out that during the time of quarrel Panchanan was not in the house and when the quarrel was going on at that time Panchanan entered in the house and both Nidhu bala Nayek and Sakhi Nayek reported the incident to Panchanan and Panchanan on hearing the incident from them and seeing Kartick standing there with a stick in his hand became excited. Let us examine the deposition in this background of Nidhu Bala Nayek and Sakhi Nayek. Nidhu Bala Nayek in her deposition stated that as Kartick Sen came forward with a lathi in hand to assault Sakhi Panchanan woke up from the sleep and came outside and saw Kartick Sen approaching towards his wife and he protested and challenged him. Then Madhusudan came forward with the iron crowbar and then Madhusudan Sen struck Panchanan on the head with the sabol and Kartick Sen assaulted Panchanan with a lathi. Being stuck by sabal Panchanan fell down on the ground and then Kartick assaulted him with lathi. So in her evidence we get a different story quite at variance from the case that has been made out in the F.I.R. According to the F.I.R at the time of the incident of quarrel Panchanan was not there and Kartick attempted to assault Sakhi. Even at that point of time Panchanan was not there. Then Panchanan came from outside and heard about the incident from Nidhu Bala Nayek and Sakhi Nayek and on seeing Kartick standing there with a stick he became excited. That part of the prosecution case has been given a complete to by in evidence of Nidhu Bala Nayek.
18. According to the deposition of P.W.3 Sakhi Nayek she protested about the sprinkling of cowdung water by Tusu Sen on the ledge of her house. Then Kartiek came out with a stick to assault her. At that time the husband of P.W.3 was not there as he went outside to attend his natures call and he came to the spot from outside. Madhusudan Sen also came there by that time and Panchanan slapped him on the face and Madhusudan Sen struck Panchanan on the head with the iron crowbar. So the evidences of P.W.I and P.W.3 are quite at variance. In the evidence of P.W.I we do not get the story of slapping of Madhu Sudan Sen on the face by Panchanan while P.W.3 in her deposition stated so.
19. We cannot but take note that the F.I.R. was written by Sujoy Singha Roy (P.W.7) at 9-9.30 A.M. on the date of the incident and the incident took place immediately after the day break. So the memory of the incident was vivid then and in the F.I.R. the story of slapping was there but P.W. 1 in her evidence has given a complete go by of that story.
20. P.W.3 does not state that she and Nidhu Bala Nayek reported the incident of attempted assault on her by Kartick Sen which excited Panchanan and then as Madhusudan Sen came there with iron crowbar he slapped him. Both P.W.I and P.W.3 in their evidences did not mention anything about the reporting of the incident to Panchanan regarding attempted assault by Kartick on Sakhi.
21. Both the witnesses namely P.W.I and P.W.3 deposed that as there was no male member immediately after the incident of assault by Madhusudan Sen on Panchanan they raised alarm and being attracted by the same Tapas Kumar Sardar, Sital Prosad Sardar (P.W.6 and P.W.5) came there. They have been declared hostile by the prosecution. Along with them the other persons came as per P.W.I and P.W.3 were Shakti Sen and Swapan Sardar. They have not been examined in the case by the prosecution and they were not examined by the I.O.
22. In the F.I.R. it has been mentioned that after the incident Ananta Sardar, Gopal Sardar, Bhibuti Sen, Anil Sardar and Madhab Sen came there and Bhibuti Sen and Madhab Sen removed Panchanan to Madhupur (Atghoria) hospital. Ananta Kumar Sardar, Gopal Sardar, Anil Sardar and Madhab Sen have not been examined in this case by the prosecution for their statements were recorded by the I.O.
23. We get from the evidence of P.W.2 Dr. Ashish Kumar Bhattacharjee, who attended Panchanan in the Atghoria P.H.C. on 3-2-88, that one Madhab Sen son of Saraswati Sen and others brought Panchanan to the P.H.C. on 3-2-88 at 7.40 A.M.
24. From the evidence of P.W. 1 we do not find that Madhab removed Panchanan to the hospital. From the evidence of P.W.3, Sakhi Nayek, we get that Madhab Sen lifted the body of Panchanan and took him to Madhupur P.H.C. But still a question lingers in our mind who is that Madhab Sen. From the F.I.R. we get that one Madhab Sen son of Amrita Sen took Panchanan to the P.H.C. From the evidence of P.W.2 we find that one Madhab Sen son of Saraswati Sen took Panchanan to the P.H.C.
25. Be that ap it may, P.W.2 found the following injuries on the person of Panchanan:-
(a) Bleeding from nose and mouth.
(b) Lacerated would about 21/2″ x 1″ x 1/2 ” on the scalp. Lacerated would on the anterior aspect front side both legs about 1/2″ x 1/2 “.
As the cause of death was not known, P.W.2 sent the dead body for P.M. examination. He opined that the bleeding from the nose and ears may be caused by a blow on the scalp with a blunt weapon like sabol, lathi etc.
26. He further deposed that he came to know from the escort party who brought the deceased to the P.H.C. that Panchanan died due to assault by Madhusudan Sen and Kartick Sen with iron stick and rod. The injury report has not been proved in this case. Suggestion was thrown to P.W.I Nidhu Bala Nayek that Panchanan was a man of immoral character and on the date of death he attempted to commit rape on girl and some people chased him. From the F.I.R. we get that the entire incident took place in the courtyard and Panchanan was lying in the courtyard in front of the room of P.W.I. But from the evidence of P.W.3 Sakhi Nayek we get that in cross-examination she deposed that her husband was lying in front of the house and upon the rasta towards the tank.
27. Suggestion was thrown to P.W. Sital Sardar that Panchanan had an affair with a woman for which he was assaulted by the villagers. If this is being tagged with the evidence of P.W.3 that Panchanan was lying in the Rasta in front of the house of P.W. 1 and P.W.3 being taken up with the evidence of P.W.8. Dr. C.R. Sengupta who opined that the head injury No. 1 as stated earlier can be caused on a man in running condition if struck by a heavy blow. If the entire incident took place in the courtyard in front of the room of P.W. 1 and if Panchanan had fallen in the ground of the courtyard in front of that room, then who removed the body of Panchanan of the rasta. No explanation is forth-coming. A explanation has been given through P.W.3 about the non-availability of Tusu Sen.
28. According to her Tusu Sen was married during the time of her deposition and she was living in her husband’s house. Does it forebade the prosecution to cite Tusu Sen as witness and to bring her to the witness box?
29. Though in the F.I.R. Shakti Sen, Swapan have been named as reported witnessed and partial eye witnessed they have not been cited as witnesses nor they were examined by the police.
30. The other persons, named namely, Tapas Sardar and Sital Sardar (P.W.6 and 5) have been declared hostile by the prosecution. Ananta Sardar, Gopal Sardar, Anil Sardar and Madhab Sen arrived at the spot immediately after the incident according to the prosecution case in the F.I.R. They have not been cited as witnesses by the I.O. The I.O. seized the iron crowbar and stick as produced by the accused persons. Iron crowbar is mat. ext. I and stick is mat. exbt. II. Those have not been shown to the P.M. doctor (P.W.8) by the prosecution. Then again of the two accused who produced the crowbar and who produced the stick? From the seizure list exbt. 1 and particularly from the endorsement on it we find the material No. 1 the iron crowbar and material No. 2 the bamboo stick were produced by Kartick and Madhusudan. Is it Kartick who produced the iron crowbar and Madhusudan who produced the bamboo stick? Or Madhusudan who produced the iron crowbar and Kartick who produced the bamboo stick? Oral depositions are there but that militates against the documentary evidence and Section 92 of the Indian Evidence Act comes into play. So which one is to be believed, oral evidence or documentary evidence? According to the Rule of evidence under Section 92 documentary evidence is to be believed. So according to the documentary evidence, Kartick produced the iron crowbar and Madhusudan produced the iron stick. In this state of evidence we do not feel it safe to convict the accused for offence under Section 302/34 IPC It is the general dictum and fundamental principle that heavier the punishment stricture is the scrutiny of evidence. We feel that in the state of evidence as adduced by the prosecution, the remiss on the part of the prosecution and the inaction on the part of the prosecution vitiates the prosecution case and the conviction and sentence of the accused persons under Section 302/34 IPC cannot be sustained.
31. We, accordingly, set aside the conviction and sentence of accused persons namely Madhusudan Sen and Kartick Sen.
32. The appeal is, accordingly, allowed.
33. The accused persons as in Jail be released forthwith. Department is directed to do the needful immediately.
34. An advance copy of this judgment be sent to the trial court and to the Superintendent of Alipore Central Jail.
Vldya Nand, J.
35. I agree.