S.P. Talukdar, J.
1. Two persons, namely Swapan Halder and Gopal Naskar, were found dead on 16th January, 2000 at 2.00 p.m. at village Earpur, P.S. Usthi, Diamond Harbour, District 24 Parganas (South). Post mortem examination was held. According to the opinion of the doctor, death was due to shock and hemorrhage caused by the various injuries as described in such report and the same were ante mortem and homicidal in nature.
2. As many as eight accused persons were tried for the offence under Section 304 (PartI) read with Section 34 of the Indian Penal Code. Prosecution in order to discharge the burden of establishing the guilt of the accused persons examined as many as 13 witnesses. The accused persons during their respective examination under Section 313 of the Code of Criminal Procedure pleaded innocence and denied the allegations as made by the witnesses for the prosecution.
3. Two witnesses were examined on behalf of the defence.
4. Learned trial court after taking into consideration all relevant facts and materials by Judgment dated 29th July, 2005 found the seven accused persons guilty and convicted them for the offences under Section 304 (Part I) read with Section 34 of the Indian Penal Code. The said convicts thereafter by order dated 4th August, 2005 were sentenced to suffer imprisonment for life and each of them was directed to pay fine of Rs. 10,000/- only, in default, to suffer further imprisonment for ten months each.
5. Being aggrieved by the said Judgment and order of conviction and sentence, the appellants approached this Court by way of filing the instant appeal.
6. Mr. Sanyal appearing as learned Counsel for the appellants sought to assail the impugned Judgment on the ground that learned trial court failed to appreciate the materials on record in the proper perspective.
7. It is the settled principle of law that it is for the prosecution to prove charges against the accused persons by establishing that the incident happened at the time and place and in the manner as claimed by it.
(Ref.: : AIR 1924 Cal 323).
8. In the present case, of the 13 witnesses examined on behalf of the prosecution, P.W.1 did not lend any support to the prosecution case. In his evidence in chief he claimed that he reached the place of occurrence on 16th of January, 2000 at about 5-30 p.m. and found a crowd of about 2500 to 3000 persons. He found accused Manas Saha getting down from his motor cycle after intimating the Police Station and police arrived there following him. The mob disbursed. Being asked by the police officer, he signed on a blank full scape paper. He identified his signatures in the inquest report marked Ext.1 and 1(a). He further identified the First Information Report written by one Dipak Bolley and signed by Manas Saha. The same were marked Ext.2 and 2/1 respectively.
9. P.W. 2 just identified his two signatures marked Ext.1/1 and 1A/1 in the documents which were prepared in connection with the death of the said two persons.
10. It is now to be seen as to how far the prosecution could succeed to unveil the mystery. Significantly enough, as rightly mentioned by learned Counsel Mr. Sanyal appearing for the appellants that the accused Manas Saha is in fact the de facto complainant in this case. He lodged a written complaint before the Officer-in-Charge of Usthi Police Station. He claimed therein that he heard hue and cry raised by several hundreds of persons in a place to the north of his house on 16th January, 2000 at about 2 p.m. He learnt that the local people encircled three dacoits who were preparing bomb in the field. As the said dacoits attacked the mob with bomb and pistol, the infuriated mob caught them, namely Swapan Halder and Gopal Naskar. They were severely assaulted. The third person somehow fled away. Being so assaulted, those two persons died on the spot. On the basis of such written complaint police authority started Usthi Police Station Case No. 12 dated 16th January, 2000 under Section 304/34 of Indian Penal Code.
11. Interestingly enough, the police authority after completion of investigation submitted charge sheet and such de facto complainant was made one of the accused persons in it.
12. P.W.3 is brother of one of the two victims, namely, Gopal Naskar. In his evidence in chief he stated that Manas Saha, Pravash Naskar, Nirmal Saha, Laltu Saha and Kachi Mondal came to their house on a particular Sunday about three years prior to his deposing in Court. It was at about 2-30 to 3 p.m. He then stated that those persons asked his mother as to the whereabouts of his brother Gopal. As soon as Gopal came out of the house accused Manas Saha caught hold of his hand and started assaulting him then and there. Other accused persons, as named by him, also joined him. Gopal was then tied with rope around his waist. He was dragged out to the road and being so assaulted, he sustained bleeding injury on his head. Laltu then took out a small revolver from his pocket and claimed that the same was recovered from Gopal. Gopal was thereafter taken to Milan Mandir. P.W.3 followed them. He touched the feet of Manas and sought for release of Gopal. Gopal was thus beaten to death by those persons. Nepal Naskar, brother of P.W.3 was present with him.
13. P.W.3 then deposed that he did not dare to meet the police. On the next day he went to the Police Station and handed over a written document describing the incident. Police did not take any action. He then approached the Superintendent of Police as well as the Deputy Inspector General of Police, CID. He made further approach to Usthi Police Station and thereafter forwarded his application by registered post with A/D. He referred to the acknowledgement cards marked Exts. P.W.3 further deposed that two other persons namely Swapan Halder and Shyampada Naskar were also brought by Manas Saha and his associates. They were also assaulted. This resulted in death of Swapan but Shyampada somehow managed to escape. P.W.3 further stated that there was property dispute between their family and the five sons of Adhir Naskar which include accused Prakash and Pravash. He also stated that here land dispute with Manas Saha, who 5/6 years back, set his house on fire. Wife of Manas was the Pradhan of Earpur Gram Panchayat and their family was an influential one. In cross-examination he admitted that he was not present when Manas Saha asked his mother as to the whereabouts of Gopal. He mentioned the names of three persons, Mohan Sardar, Nalin Halder and Faridul, who, according to him, witnessed the incident. He did not like to mention the names of other witnesses. P.W.3 further stated in cross-examination that except accused Satya Ranjan, the seven other accused persons put bamboos on the throat of both Swapan and Gopal. None had the courage to resist. It transpires from his cross-examination that at the relevant time, wife of accused Manas Saha was the Pradhan on TMC ticket. P.W.3 described accused Satya Ranjan Mondal as the supporter of CPI(M) who however joined the said party. He denied that said two victims died being assaulted by huge mob of about 3000 villagers.
14. P.W.4 is the father of P.W.3. In his evidence in chief he corroborated the evidence of his earlier witness P.W.3, on some material points. Strangely enough, in cross-examination he deposed that he came to learn from his two sons namely Rebati and Nepal that his another son Gopal was beaten to death by the accused persons. It is interesting to note that such P.W.4 in cross-examination stated that he did not know any Satya Mondal. He had no grievance against any such person. He admitted that he knew all the accused persons including Satya Ranjan since childhood as they were of the same village.
15. There is nothing much in the evidence of P.W.5 who just found the two victims namely Swapan Halder and Gopal Naskar lying dead on the field.
16. P.W.6 was just tendered by the prosecution.
17. P.W.7 was the wife of the victim Swapan Halder. According to her, when the victim Swapan was taking his meal at about 2 p.m. in the house accused Satya, whom she used to address as uncle, came to their house and informed that accused Manal Saha had called him out. Her husband left with Satya after finishing his meal. P.W.7 followed them. When they reached near the house of one Nani Bangla, accused persons namely Pravash, Prakash, Ramen, Laltu, Nirmal and Kachi started assaulting her husband. She further stated that her son Bappa was also with her. She clearly mentioned that she did not see accused Satya and Manas assaulting her husband. By the time victim Swapan was taken to the Milan Mandir field, another victim namely Gopal was found lying there dead. In cross-examination, she claimed that she was the second wife of the victim Swapan who married one Joya earlier. In course of cross-examination she further disclosed that Bappa was not the son of Swapan. His first wife Joya was previously married. She denied that the victims were beaten to death by a mob of about 2000 to 2500 persons while they were found making bombs.
18. P.W.8 corroborated the evidence of P.W.7 on all material points.
19. P.W.9 found the accused Manas assaulting Gopal with a bamboo. The said accused was accompanied by other accused persons. Victim Swapan Halder was also taken to the field of Milan Mandir where he was also assaulted by the accused persons with bamboo. In his evidence in chief he stated that after leading the accused persons in such act of killing the two victims, accused Manas Saha went to his house, changed his dress and went to Usthi Police Station in a motor cycle. Being informed by him, police arrived there in the evening. He further stated that he did not see Satya Ranjan Mondal in the field of Milan Mandir on that date nor did he find him there assaulting either of the victims. P.W.10 is another brother of P.W.3 who in his evidence in chief stated that he found the accused persons namely Manash, Prakash, Prabhas, Laltu, Kachi, Nirmal and Ramen assaulting his brother Gopal with bamboo. He also spared accused Satya Ranjan Mondal.
20. P.W.11 is the formal witness who identified the seizure list prepared by S.I. Section Mondal in connection with seizure of some pieces of cloth, shirt and pant. He identified the signature as Ext.4 and that of Constable Jiten Sarkar, Ext.4/1.
21. P.W.12 is the Police Officer who filled in the formal FIR marked Ext.5.Before starting of the case he referred to the G.D. entry made by one Manas Saha at noon on 16th January, 2000 wherein it was alleged that a huge mob of villagers gharaoed some miscreants of Earpur and were assaulting them. He identified the copy of the G.D. entry No. 582 dated 16.1.2000 marked Ext.6. He further referred to the FIR received from Manas Saha at about 16-45 hours. On its basis Usthi P.S. Case No. 12 dated 16.1.2000 was started.
22. In his evidence in chief he stated that on receipt of the G.D. he went to the field of Earpur and found a huge mob. There were two dead bodies lying on the ground. He was asked to start a case over RT. The G.D. entry was lodged at 14-15 hours. He prepared the inquest report of the two victims which being proved on by him were marked Ext.1/1 and 1A/1. He forwarded the said two dead bodies for post mortem examination to Diamond Harbour morgue. He received some alamts like pieces of broken bricks and controlled earth. He identified the seizure list prepared in that connection, marked Ext.7. He also prepared rough sketch map with index which had been marked Ext.8. He examined some local witnesses and recorded the statement before returning to Police Station. He also examined some witnesses on 17.1.2000 and 18.1.2000 and recorded their statement. He arrested two accused persons, namely Pravash and Prakash. Under order of the superior authority, he submitted charge sheet against ten accused persons who included the de facto complainant.
23. He admitted that he did not examine accused Manas Saha and his statement was not recorded under Section 161 of Cr. P.C. According to him, Manas was made an accused as per the statement of witnesses.
24. According to P.W.12, the witness P.W.1 stated before him that he heard the sound of bombs and then he went to the spot and found a huge crowd of about 2500 to 3000 persons. He further stated before I.O. that two dacoits were apprehended. The said mob detained Swapan Halder and Gopal Naskar.
25. P.W. 12 further stated that P.W.5 Jogodish Sarkar told him that on 16th January,2000 when some dacoits were manufacturing bombs they were chased by villagers. The enraged members of the mob including Pravash, Prakash, Laltu Saha and Jiban assaulted the victims. Witness Jagodish Naskar also stated that he heard that the villagers including Prakash, Pravash and Laltu took part in such assault. P.W.12 further stated that P.W.6 Kamalesh Mondal stated that the miscreants were making bombs and being chased by the villagers, two of them were detained and were subsequently found dead whereas one of them escaped.
26. P.W.12 further stated that P.W. Rebati Naskar also stated that two dacoits were assaulted by members of a huge mob and he subsequently found that the victims were none other than his brother Gopal and brother in law Swapan. P.W.12 further referred to the witness, Chaya Halder, who according to him, stated that her husband and Gopal Naskar were beaten to death by the villagers of Earpur as well as of other adjacent villages. The said witness stated that she was not at the place of occurrence and when she went to the said place, she found both Gopal and her husband were lying dead in the field.
27. Evidence of the doctor, who conducted post mortem examination, clearly indicates that the victims sustained various injuries which could very well be caused by being assaulted by members of mob.
28. It is no wonder that in the backdrop of the present case, the defence found it necessary to examine witnesses. The two witnesses examined on behalf of the defence sought to contradict the prosecution evidence implicating the present appellants/convicts.
29. What emerges from the evidence on record is that there had been steady effort on the part of the members of the family of the two victims to shield accused Satya. Learned trial judge was in fact left with no choice but to acquit the said accused.
30. Mr. Sanyal, learned Counsel for the appellants referred to certain observations made by the learned trial judge which is reproduced as follows:
Hon'ble SC in Sushil Murmu v. State of Jharkhand 2004 Cri. L.J. enumerated 5 types of cases where even death penalty can be awarded and in my opinion this one falls within the ambit of one of the said five types of case. But in this case, my predecessor in office framed a charge Under Section 304 (part 1)/34 IPC only instead of a charge Under Section 302/34 IPC and he almost completed recording of evidence of the witnesses except that of the doctor PW 13 (Ashok Kumar Mondal) which was recorded by me. By then it was too late to amend the Charge from Under Section 304 (Part I)/34 IPC to one Under Section 302/34 IPC without the trial getting delayed further by recalling all the examined prosecution witnesses once again for their further examination in chief and cross-examination if any, and thus compromise with the fundamental right of the accused persons to a speedy trial....
31. Mr. Sanyal had read 'unconscious bias' in such observation. While assailing the impugned judgement, Mr. Sanyal further submitted that exact time of occurrence had not been disclosed. He wondered as to why Mohan Sardar was not examined by the I.O. He referred to the inherent hollowness in the prosecution evidence while submitting that there is contradiction in the evidence given in court and the statements recorded under Section 161 of the Code of Criminal Procedure. Mr. Sanyal further submitted that there are contradictions in the evidence of the different prosecution witnesses. The fact that the de facto complainant Manas Saha was subsequently made an accused surprised Mr. Sanyal who further submitted that statement of such Manas Saha was admittedly not recorded under Section 161 of Cr. P.C. Referring to the evidence on record, Mr. Sanyal invited attention of the Court to the contradiction in the evidence of the three members of the family of victim Gopal. The impugned Judgment was characteristically criticized by learned Counsel Mr. Sanyal who submitted that some of the vital witnesses had not been examined. Deriving support from the Apex Court decision in the case between State of U.P. v. Punni and Ors. reported in : AIR 2008 Supreme Court 932 he submitted that witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. In fact, Apex Court in the said case relied upon an earlier decision in the case between Habeeb Mohammad v. State of Hyderabad reported in : AIR 1954 SC 51 which again referred to the decision in the case of Ram Ranjan Roy v. Emperor reported in ILR 42 Cal 422. Attention of the Court was invited to the Apex Court decision in the case between Baital Singh v. State of U.P. reported in AIR 1990 Supreme Court 1982. In the factual backdrop of the said case, the Apex Court observed that it is common tendency in the faction-ridden villages to rope in all the members of the adversary family. Reference was made to the decision in the case between State of Punjab v. Haryana : AIR 2009 SC 1966 while submitting that the word 'shall' in Clause (b) to Section 313(1) of the Code of Criminal Procedure is to be interpreted as obligatory and it should be complied with when it is for the benefit of the accused.
32. Learned Counsel for the appellants further submitted that various questions were wrapped up by the learned Trial Court at the time of examination of the accused persons under Section 313 of Cr. P.C. and as a result accused persons had been seriously prejudiced.
33. In the case between Baldeo Singh v. State of Bihar reported in AIR 1972 Supreme Court 464 it was observed that in cases of group rivalries and enmities there is general tendency to rope in as many persons as possible as having participated in an assault. The Court should therefore scrutinize evidence carefully and if there arises any doubt benefit should be given to accused.
34. It cannot be disputed that when the eye witnesses are not able to give clear and correct version as to the manner and extent of participation of all accused persons there is good reason to doubt their evidence.
35. Mr. Sanyal relying upon the Apex Court decision in the case of Kulesh Mondal v. State of West Bengal reported in AIR 2007 Supreme Court 3228 submitted that normal discrepancies do not corrode credibility of party's case while material discrepancies do so.
36. It was also submitted on behalf of the appellants that the plea of alibi taken by the accused needs to be considered only when the burden, which lies on the prosecution, has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. (Ref.:-Jayantibhai Bhenkaarbhai v. State of Gujarat : AIR 2002 Supreme Court 3569).
37. In course of submission Mr. Sanyal laid emphasis on the fact that the material witnesses who sought to substantiate the allegation made on behalf of the prosecution took a distinctly different stand in their statements recorded under Section 161 of the Cr. P.C. It was submitted that the significant aspect cannot just be lost sight of particularly when the evidence in its entirety appears to be vulnerable because of its inherent inconsistencies.
38. There is no doubt that it is the fundamental principle of Criminal Jurisprudence that an accused is presumed to be innocent and therefore the burden lies on the prosecution to prove the guilt beyond reasonable doubt.
39. Mr. Sanyal in this context referred to the decision in the case between Dahyabhai Chhaganbhai Thakkar v. State of Gujarat reported in AIR 1964 Supreme Court 1563.
40. In the case between Ram Prasad v. the State of U.P. reported in AIR 1973 Supreme Court 2673 it was held that it is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on the record so that there may be no miscarriage of justice. The discharge of such a duty cannot be affected by the consideration that some of the facts if brought on the record would be favourable to the accused. In case the court finds that the prosecution has not examined witnesses for reasons not tenable or not proper, the court would be justified in drawing an inference adverse to the prosecution.
42. Where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused. (Ref.:- Namdeo Daulata Dhayagude and Ors. v. State of Maharashtra reported in AIR 1977 Supreme Court 381)
43. Learned Public Prosecutor started his argument with severe criticism of the police authority which according to him, did nothing to unveil the mystery. Referring to the evidence on record he submitted that it cannot be said that the victim had no criminal antecedent. There is no evidence of their lynching.
44. According to Mr. Goswami, there are as many as six eye witnesses who, however, very well joined and succeeded to establish the guilt of the accused persons.
45. Mr. Dastoor invited attention of the Court to the time as mentioned in the General Diary as 2-15 p.m. If the trouble allegedly started in between 2.00 and 2.30 p.m. how could there be a diary lodged prior to the incident. According to him, the case is one of cold blooded murder.
46. Mr. Sanyal while replying submitted that how could the DIG (CID) transpose the de facto complainant as the accused in this case. He referred to Section 319 of the Code of Criminal Procedure while submitting that it could be possible only taking recourse thereto.
47. So far this aspect is concerned I find difficult to accept the contention made by Mr. Sanyal. Section 319 of the Code of Criminal Procedure does not seem to have any role to play. It relates to the power to proceed against other persons appearing to be guilty of offence and this power is to be exercised by the Court. But this does not in any way prevent the investigating authority to even implicate the de facto complainant as an accused if in course of investigation materials transpire justifying the same.
48. It is true that marginal mistakes and minor discrepancies do not demolish a prosecution case. Credibility of testimony depends upon judicial evaluation of the totality and not isolated scrutiny. It cannot be disputed that proof beyond reasonable doubt is a guideline and not a fetish. Truth may also suffer from infirmity when projected through human process.
49. It is not essentially required that the prosecution is required to dot every 'i' and cut every 't' in order to discharge the burden of proving a case. But the Court while appreciating the entire evidence on record, must find it sufficient to the satisfaction of its judicial conscience. If there are inherent lacuna and latent wounds, which could not be healed up by prosecution evidence, the Court is perhaps left with no choice but to give the benefit of doubt to the accused person.
50. Though we find it difficult to agree with the submission made on behalf of the appellants but it is also equally difficult to ignore the unconscious reflection of the subconscious mind of the learned trial court, as reflected in the judgement.
51. What emerges from the evidence on record is that some of the members of the gang of the accused persons and the members of the families of the two deceased victims had various kind of disputes between them. There had been land dispute apart from the fact that there was political rivalry. This factual backdrop certainly demands a more cautious and careful approach on the part of the Court. The fact that two sides are at daggers drawn, of course, cuts both ways. This however does not take away the responsibility of the Court to analyze the evidence on record in further detail and measure the same with coffee spoon.
52. The evidence on record implicating the accused persons came from the family members of the deceased victims. Much of such evidence adduced at the time of trial do not find any mention in the earlier statements recorded under Section 161 of the Cr. P.C.. It is further difficult to brush aside the grievance that certain questions were rather wrapped up while being put before the accused persons at the time of their respective examination under Section 313 of Cr. P.C.
53. Considering all these aspects and having regard to the evidence on record, we do not think that the learned trial court was justified in convicting the present appellants for the offence under Section 304 (Part 1)/34 of IPC. The credibility of the vital witnesses further suffered a severe blow while they attempted to protect one particular accused namely Satya Ranjan Mondal.
54. In such circumstances, the instant appeal being CRA No. 538 of 2005 be allowed. The Judgment and order of conviction and sentence passed by the learned Trial Court in SC No. 14(12) of 2002 (ST No. 9(4)/2003 be set aside. The present appellants be held not guilty of the offence under Section 304 (Part 1)/34 of IPC. They be acquitted accordingly and be released from their respective bail bonds.
55. Send a copy of this Judgment along with the LCR to the learned trial court back for information and necessary action.
S.P. Talukdar, J.
56. I agree.