JUDGMENT
Amit Talukdar, J.
1. This appeal is directed against the judgment and order dated 13.8.2003 passed by the learned Additional Sessions Judge, Third Court, Krishnanagar, Nadia in Sessions Trial No. 1 of September, 2001. By the impugned judgment the sole appellant was convicted in respect of the charge of Section 302 of the Indian Penal Code and he was sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/-; in default, to suffer further imprisonment for one year.
2. Learned Advocate for the appellant submitted that the impugned order of conviction passed against the appellant was liable to be set aside on several grounds. According to the learned Advocate for the appellant P.W.8 was the only eye-witness of the case; but his evidence was liable to be disbelieved.
3. Learned Advocate for the appellant submitted that the prosecution case is–on the date of occurrence i.e., 20.4.2001 at about 8.25 p.m. P.W.8 was lying with his wife Ashalata (the deceased) in their bedroom. He submitted that it is in his evidence that while P.W.8 was listening to the radio his wife was reading ‘panchali’ in the light of a hurricane on the cot and according to him at that point of time P.W.8 saw the appellant appearing before the window of the room and he pushed his hand inside with a revolver. As such, P.W. 8 shouted by taking the name of the appellant and then the appellant fired; as a result of which his wife died.
4. Learned Advocate for the appellant showed that both before and after the firing P.W.8 shouted taking the name of the appellant, but curiously enough the deceased wife did not mention the name of the appellant to the persons gathered for taking her to the hospital. He also submitted that the FIR was lodged by the nephew of the deceased immediately after the incident; but, however the name of the appellant was not mentioned there. Referring these two circumstances he submitted that the prosecution case was difficult to accept.
5. Learned Advocate for the appellant further submitted that P.W.2 recognized the appellant by flashing a torch light but the said torchlight was not seized. He also submitted that in view of the prosecution evidence that the appellant fired on the deceased, who was on the bed but there was no seizure of any blood from the place of occurrence or the bedding materials by the investigating agency.
6. Learned Advocate for the appellant submitted that he was falsely implicated in the present case out of rivalry which arose over the issue of catching offish and the important witnesses — P.Ws. 2, 3, 4, 6, 7 and 8 for the first time stated before the Court several aspects of the prosecution case which were not told by them earlier before the Investigating Officer. He has prayed for setting aside the conviction and sentence, as the evidence adduced on behalf of the prosecution was not believable at all.
7. Learned Additional Public Prosecutor for the State at the very outset submitted that the role of the Investigating Officer was very much suspect. He did not perform his statutory duty as a result of which there were many laches in the prosecution case for which the defence cannot get any benefit.
8. Learned Additional Public Prosecutor invited our attention to the Order No. 16 dated 7.8.2002 and submitted that the prosecution prayed for recalling the Investigating Officer (P. W. 13) for his cross-examination on account of some defects in his version. According to the learned Additional Public Prosecutor the defence accepted the. same and did not challenge the said order of recall before the Superior Court which in a way showed that they accepted the position. Learned Additional Public Prosecutor then submitted that notwithstanding the defects in the investigation which occurred owing to the laches of the Investigating Officer the Court cannot overlook the evidence of P.W.8, the husband of the victim and P.W.7, who was a contemporaneous witness and had seen the appellant running away from the place of occurrence. He also pointed out to the examination of the appellant under Section 313 of the Code of Criminal Procedure and showed that although the appellant desired to adduce defence evidence but ultimately he gave up the same which, according to the learned Additional Public Prosecutor only showed that he did not have anything to say in his defence. He has, accordingly, prayed for dismissing the appeal.
9. Learned Advocate for the de facto/complainant by way of filing his vakalatnama wanted to participate in the appeal. However, keeping in mind the constraint of Sub-section (1) of Section 385 of the Code of Criminal Procedure and the ratio of the Division Bench decision of Haradhan Sen v. State 2004 (2) CHN 527, we could not hear him formally but, only in aid of the submission of the State.
10. Now, let us see how far the submissions, made on behalf of the appellant can be accepted in the light of the evidence on record.
11. At first, we would like to look into the FIR (Ext.1) which was lodged by P.W. 1, Mritunjoy Biswas, the nephew of the deceased Ashalata and P.W. 8. The FIR was lodged on the same day, i.e. 20.4.01 at 21.25 hours. The incident, according to the prosecution took place at 20.25 hours. In the FIR P.W.1 had stated that his uncle (P.W.8) was listening to the radio with his aunt, deceased Ashalata in the bedroom. At that point of time a miscreant shot at her and injured her. He rushed to the place after hearing a loud cry and saw his aunt in a seriously injured condition and she was taken to the hospital from where the doctor sent her to the Shaktinagar Hospital.
12. For a proper grasp of the prosecution case we would now proceed to the evidence of P.W. 8, Jnanendra Nath Biswas, the husband of the deceased Ashalata. He was an eye-witness. His evidence discloses that on 20.4.2001 at about 8.00 p.m. he was lying on a cot and was listening to a radio programme. His wife Ashalata, the deceased was reading a ‘panchali’ [seized by P.W. 13 under a seizure list (Ext. 2)]. He was facing the window while the back of his wife was turned towards the window. There was a hurricane light. The hurricane was also seized on the strength of the aforesaid seizure list by P.W. 13 and kept in the zimmanama of P.W.8. At that point of time he saw the appellant standing by the side of the window and he entered his hand which had a revolver. As soon as P.W.8 saw the appellant he shouted before and after he fired and he took down his wife from the cot and placed her on the floor. He raised an alarm which attracted his neighbours. It is found from his evidence that at first, another nephew (P.W.2) Subhas Biswas came to his house and entered into the room. He disclosed to P.W.2 that the appellant had fired at his wife. P.W.2 also told him that he found the appellant to run away.
13. According to the evidence of P.W.8 it appears that thereafter he took his wife to the hospital by a van-rickshaw with the help of his neighbours before whom he narrated the incident. The police came at about 11.00 p.m. in the night and the entire incident was divulged. The Investigating Officer seized the radio, hurricane and the panchali (Mat. Ext.1 collectively) after preparing a seizure list (Ext.2).
14. In his evidence P.W.8 further stated that 4/5 days before the incident the appellant had caught fish from their tank which was protested by his wife and the appellant divulged that he would murder her. His statement was recorded by the learned Judicial Magistrate (P.W.14) on 17.5.2001.
15. After we have seen the evidence of P.W.8, who happens to be an eye-witness we would now come to the most contemporaneous evidence of
P.W. 1 and P.W. 2 [both nephews of P.W.8].
16. P.W. 1 was in his house on the date and time of incident. When he heard a sound of firing he came to the courtyard and heard a shout from the house of his uncle Jnanendra Nath Biswas (P.W.8). As a result of which he rushed towards the said house and found his aunt Ashalata was lying in the room having suffered gun shot injury. He found P.W.8 and 2/3 other persons were sitting in that room and he brought out his aunt from the room. He went to call a rickshaw van on which his aunt was placed. Both P.W. 1 and one Lakshmi Biswas (not examined) were in the said van and took his aunt Ashatata to the hospital.
17. It would be very pertinent to note that on the way Ashalata told P.W. 1 and Lakshmi “that someone fired at her through the window and she was feeling pain in her body. Ashalata was conscious then.” Ashalata also told hen that “her husband was listening transistor radio and she was reading ‘panchali’ then lying on the bed.”
18. We also get from the evidence of P.W. 1 that he along with Lakshmi Biswas and Sujit Biswas (P.W.10) took Ashalata to the Krishnaganj Hospital where the doctor gave an injection to Ashalata and advised them to take her to the Krishnanagar Hospital. It is found from his evidence that in the vehicle which took Ashalata to Krishnanagar Hospital P.W. 10 and Lakshmi Biswas (not examined) accompanied her; while he went to Krishnaganj Police Station to file a written complaint, which was registered as the formal FIR (Ext. 1) by P.W. 11, ASI Khokan Biswas and subsequently returned home by a rickshaw-van. After a while when the Police came to the house of P.W.8 he also visited the said house where many other persons were present and he came to know that the appellant had fired on Ashalata. He signed on the seizure list (Ext. 2) pertaining to the seizure of transistor radio, hurricane and the ‘panchali’ (marked Mat. Ext.1 collectively).
19. It would also be required to see the evidence of P.W. 2, Subhas Biswas along side the evidence of P.W. 1, P.W. 2 was the brother of P.W. 1, who was the author of the FIR (Ext.1). We find from his evidence that on the date of occurrence he was sitting on the stair of his house when he heard a sound of firing. He had a three-cell torch in his hand and he rushed to the house of P.W. 8 and on focusing the torch he found that the appellant was running away. Thereafter, he went to the house of P.W.8 and was told that the appellant had fired at Ashalata through the window and fled away. P.W.8 was shouting while sitting there and holding his wife. Then P.W. 1 came and he was told by P.W.2 to call fora rickshaw. Then he along with P.W. 1 and P.W.8 lifted Ashalata on the said rickshaw; but he did not accompany them. Later in that night the police came and prepared a seizure list (Ext. 2) in respect of Mat. Ext.1 collectively.
20. Along side this piece of evidence we would now look into the other evidence touching on the incident.
21. P.W.4, Sukumar Biswas, a co-villager of P.W.8 deposed that on the date of occurrence at about 8.00 p.m. hearing a hue and cry he went to the house of P.W.8 and saw his wife was being lifted on a rickshaw van. He found P.W 2. P.W. 1 and one Chitta (not examined) taking away Ashalata, the wife of P.W.8 on a rickshaw pulled by Chitta. Thereafter, P.W.8 called him in his house and on his query he was told that the appellant had fired at his wife and fled away. P.W. 3, Kamal Krishna Biswas also a co-villager at about 7-00/7-30 p.m. in the night of occurrence went to the house of the appellant for some work with his father. After he entered the bedroom of the appellant he found a T.V. set was on, being run on a battery as there was no electricity in their locality, however, he did not find the appellant in the room, but his nephew was lying on the bed. He also sat there and began watching the T.V. programme. Some time later the appellant entered at about 8.00 p.m. and also lay by the side of his nephew. He asked P.W. 3 to see as to what disturbance was going on outside. All of them went out and found that some persons were running through the road. P.W. 3 also ran with the persons and reached the house of P.W. 8 and as his wife was being lifted in a rickshaw van.
22. It would be important to note that the wife of P.W.8 divulged that she was suffering pain in her body and she would not survive. She asked P.W. 1 to look after her husband. Then they took her away to the hospital.
23. P.W.6, Santi Ranjan Samaddar, who is also a co-villager of P.W.8 in his evidence stated that at about 8.30 p.m. on the night of occurrence while he was at his home he heard a sound of firing. As such, he proceeded in that direction and saw Ashalata was being taken away in a rickshaw-van and entered the house of P.W.8, who was his brother-in-law. On his query P.W.8 stated that the appellant had fired on Ashalata through the window.
24. From the evidence of P.W. 7, Bishnu Pada Kirtania we find that he knew the appellant by his nickname but did not know the full name. He knew both P.W.8 and his wife deceased Ashalata. The appellant’s mother went to the house of P.W.7 on the date of occurrence at about 8.00 p.m. and asked as to whether he had come to their house. But as he replied that the appellant did not come to his house, she went away. Five minutes thereafter he heard a sound of firing and he came out from his house and heard a hue and cry in the northern side of his house. As a result of which he went in that direction and found that the appellant was running from the northern side. When he asked him as to what happened, the appellant did not give any reply, but went away to his house. Then following the scream he entered the house of P.W.8 and saw 2/3 persons bringing out the wife of P.W.8 and put her on a van on which she was shifted to the hospital. He deposed that he saw P.W. 1 and Lakshmi (not examined) took away the wife of P.W.8 to hospital. On query by the persons assembled P.W.8 stated that the appellant fired at his wife through the window and in the night when the police came he again came to the place of occurrence. His cross-examination shows that he carries on a business of green vegetables and resides at Dumdum for the purpose of his business; but he volunteered that he stays both at Dumdum and, at Putikhali, i.e. the village where P.W.8 resided.
25. P.W.9, Dr. Apurba Kumar Biswas was although the son of the couple P.W.8 and deceased Ashalata, his evidence does not disclose anything of importance. He signed on the inquest report (Ext.5) prepared by P.W.12, ASI Md. Badrudaja at the Sadar Hospital. He stayed at Krishnanagar where he practised medicine. P.W.10, Sujit Kumar Biswas @ Gopal also signed on the inquest report (Ext.5). Except being a witness to the inquest the evidence of P.W.10 does not bear any importance. P.W.13, Anupam Chakraborty investigated the case. He came to the place of occurrence at about 22.05 hours and effected the seizure in respect of the Mat. Ext. 1 collectively on the strength of the seizure list (Ext. 2) at about 22.50 hours in the presence of P.W. 1 and P.W. 2 and kept them in the zimma of P.W. 8. He arrested the appellant from his house on 24.4.2001 i.e. two days after the incident. Although he was taken on police remand nothing could be recovered.
26. After we have taken a complete grasp of the evidence we find that it is quite unexplainable that although P.W.8 shouted the name of the appellant before and after he fired the gunshot, was in all probability she must have heard the name of her assailant. We could have understood that obviously when she suffered a gun-shot injury, which resulted in her death, the amount of pain she was under and it would have been natural if she failed to name the appellant on account of suffering the said injury. But, we find from the evidence of P.W. 1 whose deposition, we have seen in details that Ashalata was conscious when she was put on a rickshaw-van on her way to the hospital. She clearly told that someone fired at her through the window and she was feeling pain as a result of the same. She gave description that P.W. 8 was listening to the transistor and she was reading a ‘panchali’ (Mat. Ext. 1 collectively). P.W. 3 heard that she was complaining of pain in her body and that she would not survive and had asked P.W. 1 to look after P.W.8. Even P.W. 2, who saw the appellant running away in the light of his torch, deposed that after he had been to the house of P.W.8 he saw him sitting and shouting while holding his wife at that point of time and also P.W.8 disclosed on the query of P.W. 2 that the appellant had fired at his wife through the window and fled away. It is quite irreconcilable for Ashalata not to have divulged the name of the appellant although she was conscious and according to P.W. 1 and P.W. 3 gave details of the incident, but mysteriously she did not name the appellant even though P.W.8, while holding her, disclosed the name of the appellant before P.W. 2 when he arrived at the bedroom of the former. This is a position which cannot be overlooked and renders the prosecution case susceptible to a great extent.
27. From an analysis of the evidence which we have done earlier it would be found that P.W. 1, who was in his house, rushed to the bedroom of P.W.8 after he heard a sound of firing and found his aunt deceased Ashalata ‘in the room being fired’ and saw that P.W.8 and 2/3 others were sitting in that room and was taking out Ashalata from that room. He went to call a rickshaw. If we read the evidence of P.W.2, who was sitting on the staircase of his house when he heard a sound of firing, rushed to the house of P.W. 8 and on his asking P.W.8 disclosed that the appellant had fired at his wife through the window. The evidence of P.W.2 is very clear on this point — “Gnan Babu (P.W. 1) was shouting then sitting there holding his wife. Then Mrituunjoy (P. W. 1) came there, I told him to call on a rickshaw. Then myself, Mrityunjoy (P.W. 1) and Gnan Biswas (P.W.8) lifted Ashalata in that rickshaw.” The FIR was lodged by P.W. 1 on 21.25 hours i.e. after an hour of the incident covering a distance of ten (10) kilometers. It remains a mystery why it was an unknown FIR ?
28. We have carefully considered the submissions made at the Bar. True, there may be some laches in the investigation for which we cannot make a big issue and the 164 statement (Ext. 4) of P.W.8 was recorded much later on 17.8.2001.
29. Furthermore, it would also be very clear from the evidence of P.W. 1 and P.W.2 that Ashalata at first was taken to Krishanganj Hospital where the doctor after administering an injection referred her to the Shaktinagar Hospital although it would not have been of any consequence in an otherwise circumstance but in the present case it would have been of some importance to know as to what was her condition then when she was brought before Krishanganj Hospital and as to whether she disclosed anything before the said doctor, as we find from the evidence of P.W. 1 that she was conscious and P.W. 3 stated that while she was lifted on a van she was in a speaking condition. As such, as the details with regard to her treatment before the Krishanganj Hospital and the non-examination of the doctor of the said hospital has debarred the Court from looking into a very important part of the prosecution case, which, if brought, before the Court, would have given a complete picture of the prosecution case.
30. But, even if we brush aside the several lapses, as pointed out by the learned Additional Public Prosecutor in the investigation we feel two major circumstances–first, Ashalata not naming the appellant as her assailant and secondly, the name of the appellant not appearing in the FIR on the backdrop of course of events, outlined earlier, cannot be overlooked.
31. There are several discrepancies in the prosecution case which cannot be taken lightly and if seen in a segregated fashion may not be of much importance, but taken as a whole would nave effect on the prosecution case. P.W. 1 had stated that he along with Lakshmi Biswas (not examined) and Sujit Biswas (P.W. 10) took Ashalata to the hospital by an election campaign vehicle at first to Krisnaganj Hospital. P.W.10, Sujit Biswas does not say anything of that sort. He simply gave out that he signed on the inqeust (Ext.5) held by P.W.12, ASI Md. Badarudaza. That apart, the evidence of P.W.13, the Investigating Officer Anupam Chakraborty shows that the many important witnesses have spoken for the first time various aspects of the prosecution case which were not told by them earlier.
32. The evidence of the other attending witnesses like P.W.2 and P.W.7, who saw the appellant running away from the place of occurrence and the two other evidence of P.W.7 — that the mother of the appellant went to his house to enquire about him and that of P.W. 3, who had been to his house some time before the incident and did not find the appellant in his room and came some time later, immediately after which he heard a hue and cry outside. These, in the fact situation of the instant case, would be too weak pieces of evidence to connect the appellant with the crime in view of the position which we have noted earlier.
33. Definitely in such a case based on circumstantial evidence this piece of evidence of the appellant being seen running away and/or not found in his house just before or after the incident could have been of some importance, but in this case on the basis of the set of facts which we have discussed it would be unsafe, in our view, to uphold his conviction and accordingly he is entitled to the benefit of doubt.
34. Accordingly, we allow the appeal setting aside the conviction and sentence recorded by the learned Trial Court.
35. Appeal allowed.
36. The appellant is directed to be discharged from his bail bond forthwith.
Dipankar Datta, J.
37. I agree.
