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2002 Supreme(Cal) 319
High Court Of Calcutta
Sujit Barman Roy, Malay Kumar Basu
DEBABRATA MONDAL - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Criminal Appeal 331 Of 1997
Decided On : 05/08/2002
ARUP CHATTERJEE, DILIP DUTTA, RAMKRISHNA GHOSH, SANDIP GANGULY, SATYABRATA CHAKRABORTY, SEKHAR KUMAR BASU, SUDIPTA MOITRA
The testimony of eye-witnesses, the admissibility of the contents of an inquest report as substantive evidence, and the effect of an inordinate delay in forwarding the FIR to the magistrate are important factors to be considered in determining the guilt of the accused in a criminal case.
Headnote:
CRIMINAL - EVIDENCE - APPRECIATION OF - EYEWITNESSES - TESTIMONY OF CHANCE WITNESSES - INORDINATE DELAY IN RECORDING STATEMENTS - PROSECUTION VERSION - INCONSISTENCIES - INQUEST REPORT - ADMISSIBILITY - CONTENTS OF INQUEST REPORT - USE AS SUBSTANTIVE EVIDENCE - SECTION 58 OF THE EVIDENCE ACT AND SECTION 294 OF THE CODE OF CRIMINAL PROCEDURE - SECTION 162 OF THE CODE OF CRIMINAL PROCEDURE - SECTION 145 OF THE EVIDENCE ACT - RELIABILITY OF INQUEST REPORT - DELAY IN FORWARDING FIR TO MAGISTRATE - SUSPICIOUS CIRCUMSTANCES - FALSE IMPLICATION - BURDEN OF PROOF - REASONABLE DOUBT - CONVICTION AND SENTENCE - SETTING ASIDE.
Fact of the Case:
The prosecution alleged that the appellants, along with others, trespassed into the courtyard of the complainant (PW 1) and assaulted her two sons, Kartick and Ganesh, resulting in their deaths. The appellants were convicted and sentenced to life imprisonment under sections 302/149, 148, and 448/149 IPC.
Finding of the Court:
The court found that the testimony of the eye-witnesses was unreliable due to inconsistencies, inordinate delay in recording their statements, and the failure of the prosecution to explain the delay. The court also found that the contents of the inquest report, which were admitted by the appellants, corroborated the defense version and belied the prosecution version. The court further found that there was an inordinate delay in forwarding the FIR to the magistrate, which raised suspicion about the genuineness of the FIR.
Issues: 1. Whether the testimony of the eye-witnesses was reliable? 2. Whether the contents of the inquest report could be relied upon as substantive evidence? 3. Whether there was an inordinate delay in forwarding the FIR to the magistrate?
Ratio Decidendi: 1. The court held that the testimony of the eye-witnesses was unreliable due to inconsistencies, inordinate delay in recording their statements, and the failure of the prosecution to explain the delay. The court relied on the decision in Bagwan v. State of Madhya Pradesh, AIR 1980 SC 1750, and Babuli v. State of Orissa, AIR 1974 SC 775, to hold that the delay in recording the statements of the eye-witnesses rendered their testimony highly untrustworthy. 2. The court held that the contents of the inquest report could be relied upon as substantive evidence under section 58 of the Evidence Act and section 294 of the Code of Criminal Procedure, as the genuineness of the inquest report was not disputed by the appellants. The court relied on the decision in Nagindas Ram Das v. Dalpat Ram Ichcharam, AIR 1974 SC 471, and Chandra v. Narpat Singh, 34 IA 27 (PC), to hold that judicial and extra-judicial admissions are formal and informal admissions, respectively, that constitute a waiver of proof and can be made the foundation of the rights of the parties. 3. The court held that the inordinate delay in forwarding the FIR to the magistrate raised suspicion about the genuineness of the FIR. The court relied on the decision in Surjan v. State of Rajasthan, AIR 1956 SC 425, to hold that the statement in the inquest report is not evidence by itself and cannot be pitted against the evidence of the medical officer given in court.
Final Decision: The court allowed the appeal, set aside the impugned judgment of conviction and sentence, and directed that the appellants be set at liberty forthwith.
( 1 ) -THIS appeal is directed against the judgment dated 25. 9. 1997 passed by the learned Additional Sessions Judge, 13th Court, Alipore, South 24-parganas convicting eleven appellants, namely, Debabrata Mondol, Manabendra Mondol, Khakan Naskar, Kamal Naskar, Santosh Naskar, Bibhuti Naiya, Prasad Naiya, Birupaksha Mondal, Hrishikesh Mondol, Tarun Naskar and Swapan Naiya under sections 302/149, 148 and 448/149 IPC and they were sentenced to suffer imprisonment for life and to pay a fine of Rs. 3,000/- each and in default to suffer R. I. for further one year each in respect of their conviction under section 302/149 IPC. They were also sentenced to lesser terms of imprisonment/fine in respect of their convictions for lesser offences.
( 2 ) PROSECUTION case in brief is that P. W. 1 Smt. Kajal Naiya being the mother of two deceased persons, Kartick Naiya and Ganesh Naiya lodged a written complaint before a police officer of Joynagar P. S. when she came to village Maldari. Complaint was addressed to the officer-in-charge of the said police station. It was lodged with the police officer on 5. 4. 87 at about 11. 45 a. m. Said written complaint was then forwarded to the said police station for doing the needful. It was stated to have been forwarded to the police station through C/1988 Santosh Chowdhury (P. W. 7 ). Said complaint was received at the police station on that very day at about 4. 45 p. m. and accordingly, a case/fir under sections 149/148/448/326/304 IPC was registered.
( 3 ) IT was, inter alia, alleged in the said complaint that on the previous day (4. 4. 87) at 10 p. m. some 25/30 persons being armed with deadly weapons assembled and trespassed into the Courtyard of the complainant (P. W. 1) and called out the names of two deceased persons, namely, Kartik and Ganesh to come out. They were two sons of the complainant. Then Kartik was in the western-side room and Ganesh was in the verandah. Kartik tried to flee away by making a hole in the thatched roof of his room. However, Kartik could not escape and miscreants caught hold of him and dragged him out of his room and assaulted him. Later on, both were dragged to road in front of their house and were mercilessly assaulted with sticks, spears, choppers, spades and other deadly weapons. Complainant claimed to have recognized sixteen assailants by the moonlight and the light of lantern. She gave a list of 16 assailants appended at the end of her complaint. She further claimed that there were 13/14 other assailants whom she would be able to identify if she could see them again. Except appellant No. 7 Prosad Naiya, other appellants are named in the said list appended at the end of the complaint. All these assailants are stated to be residents of village Maldari. Deceased persons were assaulted due to some misunderstanding arising out of property dispute between them since long.
( 4 ) DURING the occurrences, assailants falsely, shouted saying "dacoit", "dacoit". It has further been alleged in the complaint that some villagers, Nirmal and P. W. 1 herself were seriously injured in the incident and were lying beside the deceased persons. They also shouted for medical help but none came forward for medical help. Deceased Kartik succumbed to his injuries in the following morning at 5 p. m. Meanwhile police came and deceased Ganesh and injured Nirmal were sent to hospital. However, on way to hospital, Ganesh expired. Complaint was written by scribe Subol Ch. Naskar (P. W. 11) as per statement of P. W. 1.
( 5 ) ON the basis of the said written complaint, a case/fir was registered at the police station, as already stated. After usual investigation police submitted chargesheet against 35 accused persons including the appellants under sections 148/149/326/302 IPC showing 19 accused persons as absconders. In course of time case was committed to the Court of Sessions Judge, 24 Parganas (South), Alipore. Case was ultimately tried in the Court of the Additional Sessions
