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2016 Supreme(Cal) 320
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Debasish Kar Gupta, Md. Mumtaz Khan, JJ.
Kailash Chowdhury @ Singh & Ors. - Appellants
Vs.
The State of West Bengal - Respondent
CRA 125 of 2000
Decided On : 19-07-2016
For the Appellants :Mr. Sekhar Kumar Basu, Ld. Sr. Advocate Mr. Tapas Kumar Ghosh, Ld. Advocate Mr. Tanmoy Chowdhury, Ld. Advocate Ms. Somsubhra Ganguly, Ld. Advocate.
For the State :Mr. Ranabir Roy Chowdhury, Ld. Advocate.
Contradictions and discrepancies in witness statements, coupled with the failure to seize crucial evidence and delay in sending the FIR, can fatally undermine the prosecution's case and lead to the acquittal of the accused.
Headnote:
CRIMINAL APPEAL - CONVICTION AND SENTENCE - SECTION 307 READ WITH 34 OF THE INDIAN PENAL CODE (IPC) AND SECTION 341 OF THE IPC - CHALLENGED - FACTS AND CIRCUMSTANCES - CONTRADICTIONS AND DISCREPANCIES IN WITNESS STATEMENTS - NO SEIZURE OF BLOOD-STAINED EARTH, WEARING APPAREL, CYCLE, BULLET, OR ARMS - DELAY IN SENDING FIR - COURT ANALYSIS AND CONCLUSION - CONTRADICTIONS FATAL TO PROSECUTION CASE - COURT ERRED IN IGNORING VITAL CONTRADICTIONS - PROSECUTION FAILED TO PROVE OFFENCE BEYOND REASONABLE DOUBT - CONVICTION AND SENTENCE SET ASIDE - APPEAL ALLOWED.
Fact of the Case:
Appellants challenged their conviction and sentence for offences under Sections 307 read with 34 and 341 of the Indian Penal Code (IPC). The prosecution alleged that the appellants, along with others, attacked and fired at the victim, Tarak Roy (P.W.5), causing him bullet injuries. The appellants denied their involvement and claimed that the prosecution story was doubtful due to contradictions and discrepancies in witness statements, lack of seizure of crucial evidence, and delay in sending the FIR.
Finding of the Court:
The court found that there were material contradictions between the FIR and the statements of witnesses regarding the names and titles of the accused, the possession of firearms, the person who fired at the victim, and omissions of important facts. The court also noted that no blood-stained earth, wearing apparel, weapon of offence, bullet, or the cycle in question was seized by the investigating officer, and there was no FSL report to corroborate the prosecution's claims. Additionally, the court found that the place of occurrence, Aymadanga, as described in the charge, was not adequately proven by the prosecution.
Issues: 1. Whether the contradictions and discrepancies in witness statements were fatal to the prosecution case? 2. Whether the failure to seize crucial evidence, such as blood-stained earth, wearing apparel, cycle, bullet, or arms, weakened the prosecution's case? 3. Whether the delay in sending the FIR to the court cast doubt on the prosecution's story?
Ratio Decidendi: 1. The court held that the contradictions and discrepancies in witness statements were indeed fatal to the prosecution case. The court distinguished between minor discrepancies and contradictions, stating that while minor discrepancies would not make the prosecution case doubtful, contradictions in witness statements were fatal. 2. The court also held that the failure to seize crucial evidence, such as blood-stained earth, wearing apparel, cycle, bullet, or arms, further weakened the prosecution's case. The court noted that the investigating officer did not seize or produce any such evidence before the court, nor was there any cogent explanation for the failure to do so. 3. Regarding the delay in sending the FIR, the court held that while delay alone may not be sufficient to discredit the prosecution case, it must be considered in light of other circumstances. In this case, the court found that the delay of seven days in receiving the FIR by the Magistrate, coupled with other weaknesses in the prosecution's case, further raised doubts about the credibility of the prosecution story.
Final Decision: The court allowed the appeal, set aside the conviction and sentence of the appellants, and acquitted them of the charges levelled against them.
Md. Mumtaz Khan, J.
1. The Subject matter of challenge is the judgment, order of conviction and sentence dated March 21, 2000 passed by the Ld. Assistant Sessions Judge, Additional Court, Hooghly, in Sessions Trial Case No. 27 of 1997. By virtue of the impugned judgment appellants were convicted and sentenced to suffer rigorous imprisonment for 8 years and to pay fine of Rs. 5,000/- each in default to suffer simple imprisonment for one year for the offence punishable under Section 307 read with 34 of the Indian Penal Code (hereinafter referred to as I.P.C.) and to also suffer rigorous imprisonment for one year each for the offence punishable under Section 341 of the I.P.C. with a direction that both the sentences will run concurrently with usual set off and with a further direction that if the fine amount is realised the same will go to the victim. The backdrop of the appeal is discussed below in a nutshell:-
2. On December 23, 1993 at 10.55 hours, P.W.1 lodged a written complaint before the Officer-in-Charge, Chinsurah P.S. stating therein that on December 22, 1993 around 9.00 p.m. while his brother Tarak Roy (P.W.5) was returning home on a cycle after closing his shop at Khadinamore and after crossing beneath the railway bridge when he reached near a big Jamrul tree then Sunu Sarkar (appellant No. 2), Suresh Sankar and Kailash Singh alias Babu (appellant No. 1) in collusion and conspiracy with Shib Narayan Das(appellant No. 3) detained him and thereafter Sunu Sarkar and Kailash Singh by holding pistol on his back asked him to proceed towards nearby bush and when his brother refused and tried to run away towards home they fired at him from behind causing bleeding injury. But in spite of that injury his brother ran towards home and reached near the courtyard of Jagannath Banerjee. In the meantime hearing the sound of firing Anjali Banerjee (P.W.3) and Mina Mondal (P.W.4) came out and saw his brother and came to his help. Hearing the sound of firing he and his uncle Ram Chandra Roy also came out from the house and found his brother sustained bleeding injuries and immediately rushed him to Chinsurah Sadar Hospital where his brother was admitted in critical condition.
3. On the basis of the above written complaint, a Chinsurah P.S. Case No. 338 dated December 23, 1993 was started against the appellants and one Suresh Sankar under Section 341/326/307/114 IPC and 25/27 Arms Act. and the case was endorsed to P.W.8 for investigation who then investigated the same and on completion of investigation submitted charge sheet being No. 190 dated December 31, 1994 against the appellants under Section 341/326/307/114 IPC and 25/27 Arms Act with a prayer for discharge of accused Suresh Sankar as being fictitious person which was allowed.
4. Charges were framed on November 23, 1998 against the appellants under Section 341/307 IPC and when the appellants denied their involvement in the crime, trial commenced.
5. Prosecution examined 11 (eleven) witnesses and also produced and proved certain documents and articles and, thereafter, on completion of trial and after examination of the appellants under Section 313 Cr.P.C. learned court below passed the impugned judgment.
6. Mr. Sekhar Basu, learned senior advocate appearing on behalf of the appellants submitted that there were material contradictions in between the FIR and its maker with regard to the name and title of the accused persons, possession of firearm, the person who actually fired at the victim and omissions of important facts in the FIR which gave rise to a doubt regarding the prosecution story.
7. According to Mr. Sekhar Basu, the incident in question took place in the night and there was no source of light at that place, so presence and identification of the appellants at the place of occurrence becomes doubtful.
8. According to Mr. Sekhar Basu, blood stained earth, blood stained wearing apparels, weapon of offence, bullet and the cycle in question were not seized by the I.O. nor the
