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CALCUTTA HIGH COURT
B. C. CHAKRABARTI, J. N. CHAUDHURI, JJ.
JUGAL KISHORE LAHA AND OTHERS
VERSUS
STATE
Criminal Appeal No.111 of 1981,
Decided On : 7-9-1983
CRIMINAL APPEAL - ASSAULT - MURDER - COMMON INTENTION - EVIDENCE - F.I.R. - DELAY IN INVESTIGATION - EYE-WITNESSES - IDENTITY OF DECEASED - SECTION 34, I.P.C. - SECTION 304, PART II, I.P.C. - SECTIONS 447, 323, I.P.C.
Fact of the Case:
Four appellants were charged under Sections 447, 323 and 304, Part I of the Penal Code. All of them were found guilty under Section 304, Part II, I.P.C. and sentenced to varying terms of imprisonment. The prosecution case was that the appellants trespassed upon the lands of the informant and assaulted him and his brothers, resulting in the death of one of them, Tarini. The defense contended that there was a dispute over the title and possession of the land, and that the incident did not occur as alleged by the prosecution.
Finding of the Court:
The court found that there were discrepancies between the case made out in the F.I.R. and the evidence given at trial, and that the time of the incident had been shifted. The court also found that the medical evidence was inconsistent with the oral testimony regarding the assault on Tarini, and that material witnesses had been withheld. The court further found that the investigation was perfunctory and slipshod, and that the prosecution had failed to establish that the incident occurred in the manner and under the circumstances alleged.
Issues: 1. Whether the prosecution had proved the incident occurred in the manner and under the circumstances alleged? 2. Whether the evidence of the eye-witnesses was reliable? 3. Whether the identity of the deceased had been properly established? 4. Whether the appellants were acting in furtherance of a common intention?
Ratio Decidendi: 1. The court held that the prosecution had failed to prove that the incident occurred in the manner and under the circumstances alleged, and that the appellants were entitled to the benefit of doubt. 2. The court found that the evidence of the eye-witnesses was unreliable due to discrepancies between the F.I.R. and the evidence given at trial, the delay in recording their statements, and the non-examination of material witnesses. 3. The court found that the identity of the deceased had not been properly established due to the lack of evidence linking the deceased to the person who was identified by the constable to the post-mortem Doctor. 4. The court held that there was no evidence to support the finding that the appellants were acting in furtherance of a common intention.
Final Decision: The appeal was allowed, the order of conviction and sentence were set aside, and the appellants were released from their bail bonds.
B. C. Chakrabarti, J. :- This is an appeal against an order of conviction and sentence passed by the learned Additional Sessions Judge, Bankura, in Sessions Case No.2 of June, 1979. All the 4 appellants stood charged under Sections 447, 323 and 304, Part I of the Penal Code. All of them were found guilty under Section 304, Part II, I.P.C. Appellants Madan Laha, Panchanan Laha and Thakurdas Santal alias Hansda were sentenced to suffer R.I. for 7 years each while the appellant Jugal Kishore was sentenced to suffer R.I. for 3 years. All the 4 appellants were also found guilty under Sections 447 and 323, I.P.C. and sentenced to suffer R.I. for 3 months and 6 months each, respectively.
2. The prosecution case in brief is as follows :
Plots Nos.34 and 75 of Mouza Kankra sole, P.S. Raipur belonged to the informant, Anjan Kumar Nad and his brothers. They had grown paddy on the lands in the relevant year. On the morning of 29-11-1978 Niranjan Nad (P.W.3) found the accused persons being armed with lathis and axe engaged in harvesting the crop grown by the Nad brothers. Niranjan reported the matter to Anjan (P.W.1), Angsu (P.W.2) and Tarini (since deceased) who thereupon went to Raipur P.S. while Niranjan came back to the paddy field. At the P.S. Anjan made a statement which was recorded by the Officer-in-Charge and on the basis thereof notices under Section 154, C.P.C. were issued and a copy of the same was served upon P.W.1 at the P.S. while another copy was directed to be served upon the accused persons on the spot. The Nad Brothers being accompanied by two constables and an A.S.I. set out for the disputed land. While coming near the plot Tarini went ahead of the party and asked the accused persons not to cut the paddy from their land. He was closely followed by his brothers and the police party. On the land the accused Panchanan and Madan assaulted Tarini with lathi on his head. Angsu rushed to the rescue of Tarini when Madan and Panchanan struck him on his forehead with lathi while the accused Thakurdas hit him with an axe. Both Tarini and Angsu fell down upon the land with bleeding injuries. It is also the prosecution case that Niranjan also was assaulted on his right hand by a lathi by Madan. The accused persons along with their weapons were arrested by the police party immediately after the incident. A little later S.I.R.P. Banerjee, the Investigating Officer reached the spot. He seized the weapons as also a part of the harvested crop under seizure lists. The victims of assaults were sent to Raipur Primary Health Centre in a police jeep. Thereafter P.W.1 gave a written statement to the S.I.R.P. Banerjee which was forwarded by him through the Chowkidar, P.W.16 to the Police Station (Ext.1). This written complaint has been treated as the F.I.R. and the formal F.I.R. was drawn up by P.W.18 at the P.S.(Ext.1/1). The victim Tarini was forwarded from Raipur Primary Health Centre to Bankura Hospital where he died on the very same night. On the basis of the case as aforesaid the accused persons stood variously charged under the different sections mentioned above.
3. The defence case in brief is as follows :
There is dispute over the title and possession to plots Nos.75 and 34 between the complainant party and the accused. Litigation between them over the same is pending in the Civil Court at Bankura. The incident did not take place in the manner, under the circumstances and at the time and place alleged by the prosecution.
4. As many as 21 witnesses were examined in the case for prosecution. The defence did not adduce any evidence oral or documentary. Of the witnesses P.Ws.1, 2 and 3 are the principal eye-witnesses to the occurrence. P.Ws.4 and 5 are police constables and P.W.15 Rajyesswar Das is an A.S.I. of Police who accompanied the Nad brothers from Raipur P.S. They are also, thereafter supposed to be witnesses to the occurrence. P.Ws.6, 7, 8, 9 and 10 are seizure list wit nesses. P.W.11 is a Doctor of the Raipur Primary Health C
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