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IN THE HIGH COURT OF CALCUTTA
Debangsu Basak, Bibhas Ranjan De, JJ.
Badal Ghosh And Another - Appellant
Versus
State Of West Bengal - Respondent
C.R.A 84 of 2020
Decided On : 18-08-2022
Criminal Law - Appeal against conviction under Section 302 IPC - Section 147/148/149 of IPC read with Section 3(i)(ii) of the S.C & S.T (POA) Act - [Nank Chand v. State of Punjab, AIR 1966 SC 1742, (2019) 2 Supreme Court Cases 237] - The court discussed the sufficiency of evidence, the duty of the court to scrutinize evidence carefully, and the distinction between charges under Section 302 IPC and constructive liability under Sections 302/149 IPC. The court found that the appellants were not the authors of the injuries sustained by the victims and acquitted them of all charges.
Fact of the Case:
The case involved an appeal against the conviction of the appellants for the offence under Section 302 IPC by the Ld. Additional District and Sessions judge, 1st Court, Bankur and Special Court under Schedule Caste and Scheduled Tribe (prevention of Atrocities) Act. The victims were assaulted and succumbed to their injuries, leading to the filing of charges against 17 accused persons.
Finding of the Court:
The court found that the prosecution evidence was not sufficient to prove the charges against the appellants beyond reasonable doubt. It was observed that the medical evidence did not support the prosecution's case against the appellants, and the witnesses' statements were inconsistent. As a result, the court acquitted the appellants of all charges.
Issues: The issues revolved around the sufficiency of evidence, the duty of the court to scrutinize evidence carefully, and the distinction between charges under Section 302 IPC and constructive liability under Sections 302/149 IPC.
Ratio Decidendi: The court emphasized the duty of the court to scrutinize evidence carefully and the need to exclude any probability of bias or predetermined conclusion. It also highlighted the distinction between charges under Section 302 IPC and constructive liability under Sections 302/149 IPC, emphasizing that the conviction of the appellants under Section 302 IPC was not sustainable in the absence of sufficient evidence.
Final Decision: The court acquitted the appellants of all charges and set aside the judgment passed by the Learned Additional Sessions, 1st Court, Bankura.
JUDGMENT
Bibhas Ranjan De, J. - This is an appeal directed against the judgement passed by Ld. Additional District and Sessions judge, 1st Court, Bankur and Special Court under Schedule Caste and Scheduled Tribe (prevention of Atrocities) Act (for short S.C S.T (POA) whereby, Ld Judge convicted appellants Badal Ghosh and Sristidhar Ghosh for the offence under Section 302 Indian Penal Code (for short IPC) by an order dated 28th January 2018 and sentenced them to suffer rigorous imprisonment for life for the offence punishable under Section 302 IPC also to pay fine of Rs. 50,000/- in default to suffer further rigorous imprisonment for six (6) months. But, 13 accused persons were found not guilty of the charge under Sections 148/302/149 of IPC read with Section 3(i)(ii) of the S.C & S.T (POA) Act and they were acquitted.
Brief Facts:-
2. One Basudeb Digar son of late Ratan Digar, a resident of village Bhirbandi lodged a written complaint before officer in charge of Indus PS, Bankura to the effect that on 09.12.1997 at about 5 p.m. 26 accused persons and many others armed with weapons like gun, tangi, spear came for Bhurbandi village and threatened Basuded to withdraw Bihsnu MP Case No. 374 of 1997 otherwise he would be killed. Those accused person assaulted Gopal Digar Abhiram Dhara. One of the injured namely Abhiram Dhara was dragged to the house of Badal Ghosh.
3. On receipt of the written complaint this case was registered being no. 37/97 dated 9.12.1997 for the offence under Section147/148/149/323/325/326/307 of the Indian penal Code. Prosecution witness no. 14 (Aloke Kumar Mitra) took up investigation of this case. Formal FIR was drawn up. During investigation he visited place of occurrence (for short PO) and prepared rough sketch map with index (exhibit-9). Interregnum, both the injured succumbed to their injuries at Burdwan Hospital for which Burwan PS UD Case No. 895 of 1997 and Burdwan PS UD Case No. 902/ 1997 were started. During investigation he collected injury report from Indus BPHC and recorded statement of available witnesses under Section 161 of the Criminal Procedure Code (for short Cr.P.C.). After completion of investigation charge sheet was filed against 21 accused persons under Section 147/148/149/302 of the IPC read with Section 3 (i) (ii) of the S.C S.T (POA) Act.
4. Among 21 Accused persons Durgapada Ghosh and Dhurabapada Ghosh died before commitment of the Case and the case was filed against them on 28th April, 2004 and 18th March, 2005. Further it reveals from the record that after commitment out of 19 accused persons, Sukumar Ghosh and Shaymal Ghose died and case was file against them also on 19th March, 2008.
5. On 04.09.2010 learned trial judge framed charge under Section 148/302/149 of the IPC and Section 3 (i) (ii) of S.C S.T (POA) Act 1989 against 17 accused persons who pleaded not guilty and claimed to be tried. Subsequently, on 08.07.2019 further charge was framed under Section 148/302/149 of the Indian Penal Code read with Section 3(i)(ii) of the S.C & S.T (POA) Act against all 15 accused persons facing trial.
6. It is also revealed from the record that during trial two accused persons namely, Kartick Ghosh and Aditya Ghosh died and the case was filed against both of them by the order dated 22.07.2015.
7. To prove the charge prosecution examined as many as fourteen(14) witness and in course of evidence a good number of documents were admitted in evidence as exhibit 1to 9.One document was relied on behalf of the accused persons and that was admitted in evidence as exhibit A.
Argument Advanced:
8. Sudipta Moitra, Ld. Senior Advocate has pointed out that from the evidence it would be revealed that there are several litigations pending between the parties and as a result of which appellants have been falsely implicated. He also pointed out that Prosecution witness no. 4 and 5 being resident of the same locality did not support the prosecution case they were declared hostile. Besides, Mr. Moitra, pointed out so
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