Mondal & ANR. Vs. State of West Bengal  INSC 1685 (28 October 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO.1974 OF 2009 (Arising out of
S.L.P.(Crl.)NO.1502 of 2009) PRABIR MONDAL & ANR. ... Appellants STATE OF
WEST BENGAL ... Respondent
appellants herein and one Mongal Das were tried for an offence punishable under
Section 307/34 Indian Penal Code in Sessions Trial No.2 of March 1987 arising
out of a First Information Report lodged with Berhampore Police Station in the
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
main pillar of the prosecution case is P.W.1, Kashem Sk., the complainant
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 were 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
chances of fabrication in the FIR cannot be ruled out.
Neither the Trial Court, nor the High Court, appears to have looked into these
therefore, have no hesitation in setting aside the judgment of conviction and
sentence imposed by the Trial Court and upheld by the High Court.
appeal is, accordingly, allowed. The appellants are released forthwith.
................................................J. (ALTAMAS KABIR)
...................................................J. (ASOK KUMAR