JUDGMENT
Kalidas Mukherjee, J.
1. This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 9th Court, Alipore, in Sessions Trial No. 2(11) of 1992 corresponding to Sessions Case No. 7(3) of 1992 sentencing the appellants to suffer R.I. for life and to pay a fine of Rs. 1,000/- in default to suffer S.I. for six months under Section 302/34 IPC and further sentencing them to suffer R.I. for two years under Section 324/149 with the direction that both the sentences will run concurrently.
One Swapan Karmakar lodged complaint with the O.C., Falta P.S. alleging that he and his co-sharers used to rear fish in the pond, but during the last three years on account of dispute over the pond, pisciculture had been stopped. On 18.07.1990 at about 10/10.30 a.m. the kinsmen of the informant viz. Mohini Karmakar, Subal Karmakar, Sambhu Karmakar, Bijay Karmakar, Biswanath Karmakar, Dilip Karmakar and Brihaspati along with others came to throw fish into the pond by force without informing the informant. Sukumar Karmakar, the elder brother of the informant protested and then the aforesaid persons raided his house and assaulted Sukumar on the hand, shoulder at random with babla wood, as a result Sukumar received bleeding injury on his head. The informant came to know this from his nephew. At that stage the informant and his brothers protested and the said persons assaulted them with iron rod and wood. As a result Bharat Karmakar, Kanai Karmakar and Biswanath Karmakar sustained serious injury. On receipt of the complaint which was lodged on 18.07.1990 at about 14.50 hours, the case was started under Section 148/149/448/325/326 IPC. Subsequently Kanai succumbed to the injuries at the hospital.
After completion of investigation, the chargesheet was submitted and upon consideration of the materials on record the learned Trial Court framed charge under Section 302/149 for causing death of one Kanai and also under Section 148/149/302 IPC against the accused persons to which they pleaded not guilty and claimed trial. Before the learned Trial Court 17 accused persons faced trial and learned Trial Court after conclusion of trial, held five persons viz. Mohini, Subal, Sambhu, Bijay and Biswanath guilty under Section 302/34 IPC and also found them guilty under Section 324/149 IPC for causing hurt to Shanti, Sukumar and Bharat and passed the sentence stated above. The other accused persons were found not guilty and they were acquitted of the charges framed against them. During the pendency of this appeal one of the appellants viz. Bijay Karmakar had expired and the appeal has, therefore, abated against him. The prosecution in this case examined 19 P.Ws. including the informant, eye-witnesses, injured persons, doctor who examined the injured persons and the autopsy surgeon and the I.O., P.Ws. 6, 7 were declared hostile.
2. The learned Trial Judge held that from the evidence on records it was proved beyond reasonable doubt that five accused persons viz. Mohini, Subal, Sambhu, Bijoy and Biswanath in furtherance of the common intention caused death of Kanai by inflicting series of assault on different parts of the body of Kanai and that in furtherance of the common object of causing hurt on Kanai, they caused hurt to Shanti, Sukumar and Bharat and considering the materials on record the learned Trial Judge convicted the five appellants and passed the sentence as stated above.
3. Mr. Sekhar Basu appearing on behalf of the appellants has taken us through the evidence of the P.Ws. and submitted that the FIR is concocted, inasmuch as, the incident as stated in the FIR happened at about 10/10.30 a.m., but the informant, as per P.W.2 i.e. the scribe, was found at the P.S. at 10 a.m. and the P.S. is about 17 Km. away from the place of occurrence and, as such, there are sufficient grounds to question the happening of the incident at the time as mentioned in the FIR. Mr. Basu has contended that the autopsy surgeon found smell of alcohol and did not mark any trace of burn injury, although it has been alleged by P.W.1 and other P.Ws. that the injured were assaulted with the help of hot iron road. Mr. Basu has submitted that so far as the charge is concerned the name of only Mohini Karmakar was mentioned and as regards the names of the other accused persons it was only mentioned “and others” which is a legal infirmity in the prosecution case. It is further contended that against all the accused persons the charge was framed under Section 302/34 and also under Sections 148/149/302 IPC. Mr. Basu has submitted that as per P.W.1 Sukumar was assaulted, but, Sukumar did not state in his evidence that he has assaulted by anybody. It is further contended that as per
P.W. 1 the complaint was written in the hospital premises but P.W. 1 could not say who actually wrote the complaint and P.W.2 has stated in his evidence that he found Swapan Karmakar i.e. the informant, at the P.S. and he wrote complaint there as per the dictation of the informant. Mr. Basu has contended that as per the evidence of P.W.1 the appellants are co-sharers of the pond to the extent of 90% and a civil suit is also pending. It is further contended that the father and the mother of the deceased did not say about the names of the assailants of Kanai and the evidence of the wife of the deceased i.e. P.W.12 is unacceptable because of being contradictory and inconsistent in nature. Mr. Basu has contended that the most striking of the informant deposed in a contradictory manner and their evidence is not at all worthy of credence. Mr. Bnsu has contended that the most striking shortcoming of the prosecution case is that the parents of the deceased did not say anything against the appellants and they did not even state that from their other injured sons they came to know about the names of the present appellants being the assailants. It is the contention of Mr. Basu that because ‘of the improbabilities, grave inconsistencies and discrepancies, the impugned judgment of conviction and sentence as recorded by the learned Trial Court is not sustainable.
4. Mr. Y.A. Dewan appearing on behalf of the State has drawn our attention to the evidence of
P.Ws. 1, 8 & 9 in particular and submitted that the ocular version as stated by
P.Ws. 1, 8, 9 & 15 has been corroborated by the doctor P.W.14. Mr. Dewan has submitted that all the injured persons have been examined by the doctor and as to the history of assault the names of the assailants being other than the present appellants as stated by the doctor P.W.14, there is no mention at all to that effect in the medical report. Mr. Dewan has contended that the names of the other persons as appearing in the evidence of the doctor being the assailants has no evidentiary value. Mr. Dewan has submitted that having regard to the totality of the evidence, the learned Trial Judge rightly passed the order of conviction and sentence and there is no ground to interfere with the findings with the learned Trial Court. Mr. Dewan has referred to and cited decisions reported in 2004 SCC (Cri) 65 para 8 [Harijana Narayana and Ors. v. State of AP.]; 2004 SCC (Cri) 717 paras 10 & 13 [Surinder Singh and Anr. v. State of U.P.] and 2005 SCC (Cri) 198 paras 10, 18 & 22 [Prithvi v. Mam Raj and Ors.]
5. It is in the evidence of P.W.1 that on.18.07.90 at about 10/10.30 a.m. the incident allegedly took place. The FIR was lodged on 18.07.90 at 14.05 hours. It is in the evidence of P.W.1 that the written complaint was prepared in the hospital premises. He could not say in examination-in-chief as to who actually wrote that complaint but, stated further that the written complaint was prepared according to his dictation. P.W.2 is the scribe who has stated that he met P.W.1 at the P.S. and there he wrote the complaint as per the dictation of Swapan Karmakar (P.W.1). It is also in cross-examination of P.W.2 that at the P.S. he found Swapanbabu (P.W.1) in the chamber of duty officer and it was the duty officer who told him to write a complaint of Swapanbabu. So from the evidence of P.W. 2 it is clear that at 10 a.m. he found the informant (P.W. 1) at the P.S. and that P.W. 2 wrote the complaint as per the dictation of P.W.1 at the P.S., although the P.W.1 stated that the complaint was written at the hospital premises. In this connection Mr. Basu has submitted that the distance of the P.O. is about 17 Km. away from the P.S. and if the incident took place at about 10/10.30 a.m. it was impossible on the part of the P.W. 1 to reach the P.S, about 17 Km. away at 10 a.m. Considering the circumstances we find that the time of the alleged occurrence as stated by P.W. 1 in his evidence and in the FIR, at the very out set, raises strong suspicion and it speaks of embellishment as well.
6. It is in the evidence of P.W. 1 and other P.Ws. that in the first phase of the alleged occurrence over the introduction of fish in the pond, Mohini, Subal, Sambhu, Biswanath, Bijay, Dilip, Brihaspati, Nakul and others conjointly attempted to introduce young fish in the said tank without intimating the informant, and at that time Sukumar, brother of the informant, objected and due to such objection raised by him, all those persons being armed with lathi, rod, started beating Sukumar causing injuries on his person. It is the further case of the prosecution as stated by the P.Ws. that after Sukumar was beaten up, P.W.1 accompanied by Kanai, Bharat & Biswanath came to that place and had altercation with the assailants over the matter in dispute. It is also in the evidence of P.W.1 that Sibu, Gopal came out of the shop and they started causing hurt to P.W.1 by means of wooden piece and iron rod and as P.W.1 was assaulted, Kanai intervened. It is in the evidence of P.W.1 and other P.Ws. that Kanai was dragged by Bijay, Mohini, Subal, Sambhu and Biswanath to a place in front of the shop and Kanai was assaulted by means of hot iron rod and bamboo pole on the back, head and other parts of the body of Kanai. P.W.1 further stated that Kanai sustained injury and in that situation Bharat intervened and he was also assaulted by those persons by means of rod and other articles. P.W.1 further stated that his two other brothers named Sukumar and Biswanath were also assaulted by those persons and Sukumar was assaulted first. From the evidence of P.W.1 it is gathered that Sukumar was assaulted first and thereafter P.W.1, Kanai, Bharat, Biswajit were assaulted P.W.1 further stated that Biswajit did not get any serious injury. In the cross-examination P.W.1 stated that he was not present when Sukumar was first assaulted and when Kanai was assaulted about 50-60 villagers assembled there. It is also in the cross-examination of P.W.1 that when Kanai was abducted by them at that time those persons were not armed with weapons and Kanai was abducted up to the front of the blacksmith shop of the Mohini, Subal, Sambhu and Biswanath. P.W.1 stated that as a matter of fact nobody dragged Kanai but there was dragging by scuffling and there was similar scuffling with two other brothers Biswajit, Bharat and others. He could not say with whom there was scuffling with Biswajit. He stated that he found Kanai was lying when he saw him and he was then unconscious. This goes to show that he did not actually see the infliction of assault upon Kanai. P.W.1 has, however, stated that accused Biswanath, Mohini, Brihaspati went to hospital and they were discharged from the hospital immediately. He could not say who actually caused hurt by hot iron rod on the head of Bharat and he did not see anybody to cause any hurt on the body of Biswajit. Mr. Basu has drawn our attention to the cross-examination of P.W.1 where P.W.1 stated that he did not tell the police that as Kanai intervened to rescue, he was abducted by Bijay, Subal, Biswanath and Mohini and he was assaulted thereafter in front of that shop. It is in the cross-examination of P.W.1 that he spoke of only seven persons at the P.S. at that time of lodging the FIR. But it appears that as many as 17 persons faced the trial.
7. P.W.3 Khudiram Karmakar, is the further of victim Kanai. He stated that there was an occurrence over the matter of throwing fish in the tank and in the occurrence his second son Kanai died. But he did not state what was cause of death of Kanai. It is also in his evidence that he could not know even after the said occurrence as to who actually caused the death of Kanai. The mother of the victim i.e. P.W.11 did not state anything against these appellants and she did not name anyone as to the assailants of Kanai and others.
8. P.W.12 is the wife of the victim Kanai. She has stated that she tried to save her husband, but, the accused persons also hit her on her left palm. It is in her evidence that after causing death of her husband the accused persons threw her husband into the bush and after searching, the deadbody was traced out. This evidence of the wife of the victim was not corroborated by any other P.Ws. The I.O.P.W.19 has stated in cross-examination that he did not find any blood-stained earth within a bush and he further stated that the complainant did not state before him that the deadbody of Kanai had been thrown into a bush. Although P.W.12, the wife of the victim, has stated that she tried to save her husband and sustained injury on her left palm, in the cross-examination she has stated that on seeing her husband being assaulted, she left the place. She has also stated in her cross-examination that she got hurt on her left palm and she lost her sight for the time being. Mr. Basu in this connection has drawn our attention to the fact that I.O. examined P.W.12 two months after the alleged incident.
9. The brothers of P.W.1 are P.W.8 Biswajit Karmakar, P.W.9 Sukumar Karmakar, P.W.10 Bharat Chandra Karmakar. P.W.8 in his cross-examination could not say the number of villagers who assembled there. It is in his cross-examination that he did not see altercation relating to the introduction of fish. He could not say on how many parts of the body of the Sukumar hurt was caused. He could not also say who caused hurt on the body of Shanti. It is in the evidence of P.W.8 that accused Bijay started a criminal case against him and he took bail in that case. It is also in the evidence of P.W.1 that there is a civil suit pending between the parties over the said pond and the accused persons have ownership to the extent of 90% over the said tank. P.W.9 has stated in cross-examination that Kanai was dragged to a place in front of the blacksmith shop and it was Kanai who was assaulted for the first time. But, in this regard P.W.1 contradicted and stated that Sukumar was assaulted first. P.W.9 has stated in cross-examination that he did not notice who caused teurt on the body of his elder brother Bharat and that Sambhu, Subal, Mohini, Bijay did not hit him (P.W.9), Bharat Chandra Karmakar (P.W.10), another brother of P.W.1, has stated in cross-examination that when altercation with Sukumar firstly started, he was not present at that place. He also stated in examination-in-chief that in the midst of hot exchange somebody from behind caused hurt on his head and he could not say who and by which article hurt was caused on his head.
10. It is in the evidence of P.Ws. that the injured including P.W.1 and also the deceased were assaulted by hot iron rod but the P.Ws. regarding the alleged infliction of assault by means of hot iron rod.
11. From the evidence of the P.Ws. as discussed above, it is clear that there are grave discrepancies between the ocular version and the medical evidence. There are also improbabilities and inconsistencies in the evidence of the P.W.s over the manner in which the incident allegedly took place. Mr. Basu has also pointed out that the charge was framed under Section 302/34 IPC as well as Section 148/149 of the IPC against the accused persons mentioning only the name of Mohini Karmakar “and others”. Mr Basu contended that the names of other accused persons were not mentioned in the charge and over the same incident, charges were framed with the aid of Sections 34 and 149 IPC which is a legal infirmity in the prosecution case. Mr. Dewan has contended that all the injured persons were examined by the doctor and the evidence of the P.Ws. coupled with the medical evidence clearly proved the prosecution case. But because of the improbabilities, grave discrepancies, contradictions as appearing in the evidence of the P.Ws., we are unable to accept the contention of Mr. Dewan. The decisions cited by Mr. Dewan are not applicable in the different circumstances of the instant case. Learned Trial Judge misdirected himself in the appreciation of the evidence of the P.Ws. and, in our considered view, was not justified in recording the order of conviction and sentence. The prosecution has failed to bring home the charges against the appellants. There is merit in this appeal and the same is, therefore, allowed. The impugned judgment of conviction and sentence is set aside. The appellants are on bail and they are discharge from their respective bail bonds.
12. Let a copy of this judgment along with LCR be sent to the learned Court below immediately.
13. Urgent xerox certified copy, if applied for, be handed over to the parties as early as possible
Alok Kumar Basu, J.
14. I agree