Swapan Kumar Das Vs. the State of West Bengal - Court Judgment

Excerpt:
[k.c.bhanu, j.] code of criminal procedure (cr.p.c) - sections 374(2), 313; indian penal code,1860 (ipc) - section 302; indian evidence act, 1872 - section 6 -- appeals from convictions - the deceased was having some agricultural land and he mediated certain disputes in which the accused was involved and some of the disputes went against the accused. therefore, the accused bore grudge against the deceased. the wife of the deceased informed them that the deceased went to the cattle shed for milching the milk. in the meantime, the accused went there and hacked the deceased with a knife (mo.1). on hearing the cries, both pws.1 and 2 rushed to the scene of offence and saw the accused stabbing the deceased. after stabbing the deceased, the accused jumped over the compound wall and ran towards western side. after jumping the compound wall, pws.3 and 4 saw the accused running with a knife stating that he had already killed the deceased. at that time, the accused was found at sivalayam. then pw.8 apprehended him. after completition of the prosecution side evidence, the accused was examined under section 313 cr.p.c, explaining the incriminating circumstances appearing against him in the evidence of prosecution witnesses. the trial court accepting the evidence of pws.1 to 4 found the accused guilty and accordingly he was convicted and sentenced as indicated above. pws.4 and 6 are the mediators, who were present when the police conducted inquest over the dead body of the deceased under ex.p-3 inquest report. pw.7 is the doctor who conducted autopsy on the body of the deceased, found the following ante-mortem injuries; incised wound oblique, right infra clavicular 3 cm x 0.5 cm 0.5 cm red ante mortem. the evidence of pw.4 would go to show that the disputes relating to the accused were decided by himself and the deceased and they were decided against the accused and therefore the accused bore grudge against the deceased. even assuming for a moment that pw.4 and the deceased have decided some of the disputes relating to the accused and they went against him, certainly the accused would have entertained a grouse or enmity against both pw.4 and the deceased. pws.1 and 2 are closely related to the deceased, as the deceased is their maternal uncle. since pws.1 and 2 are closely related to the deceased, there is every possibility for them to come to the house of the deceased. the distance between the house of the deceased and pws.1 and 2 is only twenty two (22) meters. it is borne out from the evidence that when they went to the house of the deceased, the deceased was not available in the house. shortly thereafter, they heard cries from the cattle shed of deceased. they rushed to the scene of occurrence and found the accused hacking the deceased indiscriminately with a knife. as pws.1 and 2 and the deceased raised cries, there is every scope or possibility for pw.3 to come out from the house and witnessing the accused running away from the scene of occurrence. the accused was arrested by pw.8 in the presence of pw.6 on 26-04-2005 at sivalayam in kotikesavaram village. 1) this appeal is directed against the judgement and order dated 24.12.1987 whereby and whereunder the appellant has been convicted under section 7(i) a(ii) of the essential commodities act, 1955 and sentenced to suffer s.i. for 1 year and to pay a fine of rs. 500/- (five hundred) by the learned judge, special court, midnapur on 24.12.1987.2) in short, the case of the prosecution is that on 24.7.1984 at about 12 hours makhan lal biswas, sub-inspector of police attached to district enforcement branch (p.w. 5) along with constable bhuneswar tewary (p.w. 2) had been to the fertiliser dealer shop-cum-godown of the appellant. the appellant was not present at that time but his employee susanta samanta was found conducting the business. on checking the stock register, sale register and other documents found available, the p.w. 5 found shortage of 10 quintals of phosphate which was not entered in the register board of stock of the fertiliser. on questioning, susanta samanta failed to give any explanation. the p.w. 5, therefore, seized the articles such as stock register, sale register and other documents, the board and the fertilisers in presence of witnesses under seizure list. the stock of fertiliser seized by the p.w. 5 was kept in the custody of susanta samanta under a zimbanama. therefore, the p.w. 5 filed on f.i.r. with the local police station and on the basis of the said f.i.r., chandrakona police station case no. 9 dated 24.7.1984 against the appellant under section 7 (i) a(ii) of the essential commodities act, 1955. the case was tried in the special court. upon considering the evidence on record, oral and documentary the learned court found the accused guilty of offence charged with and convicted him to suffer s.i. for one year and to pay a find of rs. 500/-.3) being dissatisfied with the order of conviction and sentence, this appeal has been preferred by the appellant on the grounds that the learned court failed to appreciate the evidence in its proper prospective and ignored completely the evidence adduced on behalf of the appellant. the order of conviction and sentenced unjustified and not in accordance with law. the appellant prayed for setting aside of the same. the point to be decided in this appeal whether the judgement impugned herein is sustainable in law?4) mr. ranjit kumar ghoshal, the learned advocate for the petitioner submits that the p.w. 1 was not sure whether on physical verification stock of phosphate was found short or not. therefore, his evidence should not have been accepted sacrosanct by the trial court. he further submits that the p.w. 1 and other local witnesses categorically stated that on that particular date some customers came to the shop and bought some fertilizer on credit. the learned trial court ignored those statements of the witnesses without assigning any reason, whatsoever. he further submits that the evidence of defence witness has been discarded totally which corroborates the statements of local witnesses. dw 1, according to mr. ghoshal, was the man who came to the shop on that date and purchased 10 kgs. phosphate on credit. that credit transaction was not entered into the books of account then and there and the stock of phosphate was not reduced accordingly on the board. since the appellant was not present in the shop at that time and some one was conducting the business in his absence, that credit entry was not made in the register and the stock of phosphate was not reduced accordingly on the board. mr. ghoshal submits that the learned trial court ought to have considered these factual aspects without discarding the evidence of dw 1.5) sri rashbelari mahato, the learned advocate appearing for the state submits that the learned trial court rightly came to the conclusion that the appellant failed to produce books of account relating to cash and credit sale of any type of fertilizer in the respective registers. there were reasons enough for the learned trial court to disbelieve and discard the evidence of the dw 1. mr. mahato submits the learned trial court was justified and right in coming to the conclusion that the appellant committed the offence alleged. so, the judgement impugned is not required to be interfered with.6) i have gone through the evidence recorded by the learned trial court minutely and i have also gone through the f.i.r. which is the basis of the case. in all , 10 kgs of phosphate was found short on physical verification. it was the case of the appellant before the learned trial court that 10 kgs of phosphate was sold to the dw 1 on that very date immediately before the raid was conducted. so, according to the appellant, necessary entries could not be made in the registers. from the evidence on record as well as the materials placed before the learned trial court altogether indicates that one sale register and cash memo register were placed before the d.e.officer on demand. it is not the case of the prosecution that the appellant have been running the business without licence. the only omission on the part of the appellant was that he could not produced any credit memo in respect of 10 kgs phosphate and he did not mention that sale of 10 kgs phosphate in the sale register. it may be mentioned here that the stock cum-red board was also found displayed in the shop. it is admitted position that the appellant was not present in the shop at the time of raid. one of his employees susanta have been conducting the business. the p.w. 2 , a local man, who happens to be a witness to the seizure, has denied that the d.e.o official weighed the article and made any physical verification of the stock. he also denied that the fact that any discrepancies in the stock was detected. in his cross-examination the p.w. 2 has stated that he saw the customers purchasing fertilizer from the shop of the appellant before the d.e official appeared. he has stated further in his cross-examination that susanta wanted to show the licence and credit memo to the d.e official who even did not look at those.7) p.w. 3, a watcher constable attached to d.e.o faintly remember that there was shortage of 10 kgs of fertilizer. he could not remain whether appellant was found in the shop or not. in his cross-examination he admitted that the fertilizer were not weighed on spot. the calculation of shortage was done by the d.e officer assuming the approximate weight of the bags containing fertilizer. the p.w. 1 who happened to be a local man and one of the signatories of the seizure list, stated in his cross-examination that the d.e. officer did not verifying the stock of fertilizer by way of weighment. the employee susanta wanted to show licence and credit memo issued on that particular date. he has further stated that before the deb officer held the raid, some customers came to the shop of the appellant and purchased fertilizer.8) the learned trial court discarded the evidence of p.w. 1 as well as p.w. 3 on the above mentioned material points without assigning any cogent reason. while the appellant was examined under section 313 cr.p.c., he had taken a specific plea that the credit memo was shown to the d.e.official by his employee but those were not considered by the officer. he also had taken the stand in course of cross-examination under section 313 cr.p.c. that everything was in order but the d.e officer did not want to accept the credit memo and , as a result, he found 10 kgs of phosphate short than the actual physical stock.9) the evidence of thinkari dhara (dw 1) was not at all considered by the learned trial court. he stated categorically that on the particular that he purchased the 10 kgs of phosphate on credit from the shop of the appellant against a credit memo. the particular credit memo was admitted to evidence and marked exhibit a on behalf of the defence. the signatures thereon were also marked exhibit a/1 and a/2. the learned trial court while appreciating the evidence of the dw 1 came to a findings that the dw 1 who came to learnt about the raid held by the deo officer in the shopcum- go down in the evening of that date. so, the learned trial court found no reason as to what prevented the dw 1 to inform the d.e officer about the fact that he purchased 10 kgs of phosphate on credit in the shop of the appellant. simply, on that ground the learned trial court disbelieved and discarded the evidence of dw 1 although the credit memo was admitted into evidence and marked exhibit without any challenge. learned trial court was constrained to hold that the appellant made a futile effort to save himself from the rigorous of the provision of the act by examining the dw 1 and admitting the credit memo into evidence as exhibit a.10) on careful appraisal of the evidence as a whole what i find is that the case of the appellant from the very beginning is that 10 kgs of phosphate was sold on credit to the dw 1 which has ultimately been established by the appellant. it is his consisting case that he issued credit memo in favour of the dw 1 who purchased 10 kgs of phosphate on credit. it is his consistent case also that the d.e officer did not care to look at the credit memo which was sought to be produced by his employee shosanko. the evidence of shosanko as well as the dw 1 supports the plea taken by the appellant. there was no reason whatsoever to discard their evidence and the exhibit1. the ground that the dw 1 had opportunity to disclose the fact to the d.e officer subsequently about his purchase can not be said to be rational and justified one in the fitness of the circumstances.11) in criminal action, the entire burden is on the prosecution to establish that the case against the accused is proved beyond reasonable doubt. doubt, must be a reasonable doubt. in the instant case , i find that there are reason enough to doubt as to the authenticity of the statement of the d.e inspector who initiated the criminal action regarding non-production of credit memo in respect of 10 kgs of phosphate. this appears to be a fit case where the appellant should have been given the benefit of doubt.12) in my estimate, the learned trial court failed to appreciate the entire evidence recorded by him in proper perspective. the judgement impugned suffers from lack of sufficient cogent evidence inspiring confidence in the mind of court. the judgement is interfered with in this appeal. i find that the accused ought to have been acquitted. as a result, the appeal succeeds. the judgement impugned convicted the appellant under section 7(i) a(ii) of the essential commodities act, 1955 and sentencing him for s.i. 5 years is hereby set aside.13) the copy of judgment and the l.c.r. be sent to the learned trial court.

Judgment:
1) This appeal is directed against the judgement and order dated 24.12.1987 whereby and whereunder the appellant has been convicted under Section 7(i) a(ii) of the Essential Commodities Act, 1955 and sentenced to suffer S.I. for 1 year and to pay a fine of Rs. 500/- (Five hundred) by the learned Judge, Special Court, Midnapur on 24.12.1987.

2) In short, the case of the prosecution is that on 24.7.1984 at about 12 hours Makhan Lal Biswas, Sub-Inspector of Police attached to District Enforcement Branch (P.W. 5) along with Constable Bhuneswar Tewary (P.W. 2) had been to the fertiliser dealer shop-cum-godown of the appellant. The appellant was not present at that time but his employee Susanta Samanta was found conducting the business. On checking the stock register, sale register and other documents found available, the P.W. 5 found shortage of 10 quintals of phosphate which was not entered in the register board of stock of the fertiliser. On questioning, Susanta Samanta failed to give any explanation. The P.W. 5, therefore, seized the articles such as stock register, sale register and other documents, the board and the fertilisers in presence of witnesses under seizure list. The stock of fertiliser seized by the P.W. 5 was kept in the custody of susanta Samanta under a Zimbanama. Therefore, the P.W. 5 filed on F.I.R. with the local police station and on the basis of the said F.I.R., Chandrakona Police Station case no. 9 dated 24.7.1984 against the appellant under Section 7 (i) a(ii) of the Essential Commodities Act, 1955. The case was tried in the Special Court. Upon considering the evidence on record, oral and documentary the learned Court found the accused guilty of offence charged with and convicted him to suffer S.I. for one year and to pay a find of Rs. 500/-.

3) Being dissatisfied with the order of conviction and sentence, this appeal has been preferred by the appellant on the grounds that the learned Court failed to appreciate the evidence in its proper prospective and ignored completely the evidence adduced on behalf of the appellant. The order of conviction and sentenced unjustified and not in accordance with law. The appellant prayed for setting aside of the same. The point to be decided in this appeal whether the judgement impugned herein is sustainable in law?

4) Mr. Ranjit Kumar Ghoshal, the learned Advocate for the petitioner submits that the P.W. 1 was not sure whether on physical verification stock of phosphate was found short or not. Therefore, his evidence should not have been accepted sacrosanct by the Trial Court. He further submits that the P.W. 1 and other local witnesses categorically stated that on that particular date some customers came to the shop and bought some fertilizer on credit. The learned Trial Court ignored those statements of the witnesses without assigning any reason, whatsoever. He further submits that the evidence of defence witness has been discarded totally which corroborates the statements of local witnesses. DW 1, according to Mr. Ghoshal, was the man who came to the shop on that date and purchased 10 kgs. phosphate on credit. That credit transaction was not entered into the books of account then and there and the stock of phosphate was not reduced accordingly on the board. Since the appellant was not present in the shop at that time and some one was conducting the business in his absence, that credit entry was not made in the register and the stock of phosphate was not reduced accordingly on the board. Mr. Ghoshal submits that the learned Trial Court ought to have considered these factual aspects without discarding the evidence of DW 1.

5) Sri Rashbelari Mahato, the learned Advocate appearing for the State submits that the learned Trial Court rightly came to the conclusion that the appellant failed to produce books of account relating to cash and credit sale of any type of fertilizer in the respective registers. There were reasons enough for the learned Trial Court to disbelieve and discard the evidence of the DW 1. Mr. Mahato submits the learned Trial Court was justified and right in coming to the conclusion that the appellant committed the offence alleged. So, the judgement impugned is not required to be interfered with.

6) I have gone through the evidence recorded by the learned Trial Court minutely and I have also gone through the F.I.R. which is the basis of the case. In all , 10 kgs of phosphate was found short on physical verification. It was the case of the appellant before the learned Trial Court that 10 kgs of phosphate was sold to the DW 1 on that very date immediately before the raid was conducted. So, according to the appellant, necessary entries could not be made in the registers. From the evidence on record as well as the materials placed before the learned Trial Court altogether indicates that one sale register and cash memo register were placed before the D.E.Officer on demand. It is not the case of the prosecution that the appellant have been running the business without licence. The only omission on the part of the appellant was that he could not produced any credit memo in respect of 10 kgs phosphate and he did not mention that sale of 10 kgs phosphate in the sale register. It may be mentioned here that the stock cum-red board was also found displayed in the shop. It is admitted position that the appellant was not present in the shop at the time of raid. One of his employees susanta have been conducting the business. The P.W. 2 , a local man, who happens to be a witness to the seizure, has denied that the D.E.O official weighed the article and made any physical verification of the stock. He also denied that the fact that any discrepancies in the stock was detected. In his cross-examination the P.W. 2 has stated that he saw the customers purchasing fertilizer from the shop of the appellant before the D.E official appeared. He has stated further in his cross-examination that Susanta wanted to show the licence and credit memo to the D.E official who even did not look at those.

7) P.W. 3, a watcher constable attached to D.E.O faintly remember that there was shortage of 10 kgs of fertilizer. He could not remain whether appellant was found in the shop or not. In his cross-examination he admitted that the fertilizer were not weighed on spot. The calculation of shortage was done by the D.E Officer assuming the approximate weight of the bags containing fertilizer. The P.W. 1 who happened to be a local man and one of the signatories of the seizure list, stated in his cross-examination that the D.E. officer did not verifying the stock of fertilizer by way of weighment. The employee Susanta wanted to show licence and credit memo issued on that particular date. He has further stated that before the DEB officer held the raid, some customers came to the shop of the appellant and purchased fertilizer.

8) The learned Trial Court discarded the evidence of P.W. 1 as well as P.W. 3 on the above mentioned material points without assigning any cogent reason. While the appellant was examined under Section 313 Cr.P.C., he had taken a specific plea that the credit memo was shown to the D.E.Official by his employee but those were not considered by the officer. He also had taken the stand in course of cross-examination under Section 313 Cr.P.C. that everything was in order but the D.E officer did not want to accept the credit memo and , as a result, he found 10 kgs of phosphate short than the actual physical stock.

9) The evidence of Thinkari Dhara (DW 1) was not at all considered by the learned Trial Court. He stated categorically that on the particular that he purchased the 10 kgs of phosphate on credit from the shop of the appellant against a credit memo. The particular credit memo was admitted to evidence and marked exhibit A on behalf of the defence. The signatures thereon were also marked exhibit A/1 and A/2. The learned Trial Court while appreciating the evidence of the DW 1 came to a findings that the DW 1 who came to learnt about the raid held by the DEO officer in the shopcum- go down in the evening of that date. So, the learned Trial Court found no reason as to what prevented the DW 1 to inform the D.E officer about the fact that he purchased 10 kgs of phosphate on credit in the shop of the appellant. Simply, on that ground the learned Trial Court disbelieved and discarded the evidence of DW 1 although the credit memo was admitted into evidence and marked exhibit without any challenge. Learned Trial Court was constrained to hold that the appellant made a futile effort to save himself from the rigorous of the provision of the act by examining the DW 1 and admitting the credit memo into evidence as exhibit A.

10) On careful appraisal of the evidence as a whole what I find is that the case of the appellant from the very beginning is that 10 kgs of phosphate was sold on credit to the DW 1 which has ultimately been established by the appellant. It is his consisting case that he issued credit memo in favour of the DW 1 who purchased 10 kgs of phosphate on credit. It is his consistent case also that the D.E officer did not care to look at the credit memo which was sought to be produced by his employee Shosanko. The evidence of Shosanko as well as the DW 1 supports the plea taken by the appellant. There was no reason whatsoever to discard their evidence and the exhibit

1. The ground that the DW 1 had opportunity to disclose the fact to the D.E officer subsequently about his purchase can not be said to be rational and justified one in the fitness of the circumstances.

11) In Criminal action, the entire burden is on the prosecution to establish that the case against the accused is proved beyond reasonable doubt. Doubt, must be a reasonable doubt. In the instant case , I find that there are reason enough to doubt as to the authenticity of the statement of the D.E Inspector who initiated the criminal action regarding non-production of credit memo in respect of 10 kgs of phosphate. This appears to be a fit case where the appellant should have been given the benefit of doubt.

12) In my estimate, the learned Trial Court failed to appreciate the entire evidence recorded by him in proper perspective. The judgement impugned suffers from lack of sufficient cogent evidence inspiring confidence in the mind of Court. The judgement is interfered with in this appeal. I find that the accused ought to have been acquitted. As a result, the appeal succeeds. The judgement impugned convicted the appellant under Section 7(i) a(ii) of the Essential Commodities Act, 1955 and sentencing him for S.I. 5 years is hereby set aside.

13) The copy of judgment and the L.C.R. be sent to the learned Trial Court.