Evidence Law – Arms Act, 1959 – Ss. 25(1b)(a) & 27 – Penal Code, 1860 – Ss. 364/302/34 – the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital.
In the instant case, from the evidence of the eye witnesses that they had vividly narrated about participation of all the appellants in attacking the deceased. It was evident from the evidence of eye witnesses that there was pre arranged plan to kill the deceased and these appellants forcibly dragged the victim from his house, who was desperately asking his mother to save his life, and when they were requested by the prosecution witnesses to release the victim they threatened and prevented them by showing fire arm from going to rescue of the victim declaring that they would deal with him and ultimately one of them fired on his chest critically wounding him resulting in his death. The entire circumstances and the evidence on record lead to the conclusion that the appellants shared common intention to kidnap and cause death of the deceased/victim. Therefore, dismiss the appeals and affirm the conviction and sentence imposed on the appellants.
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
The Hon’ble Justice Debasish Kar Gupta
The Hon’ble Justice Md. Mumtaz Khan
Judgment on: 20.05.2016
CRA 224 of 2014 Ranjan Sharma @ Bubai & Anr. Vs.The State of West Bengal With CRA 324 of 2014 Debandra Shaw @ Chotka Lal Shaw @ Chottolal Vs. The State of West Bengal With CRA 285 of 2014 Rabi Das @ Rabi Vs. The State of West Bengal Mr. Arnab Sinha, Ld. Advocate …amicus curiae in CRA 324 of 2014 Mr. Sabyasachi Banerjee, Ld. Advocate …amicus curiae in CRA 224 of 2014 & CRA 285 of 2014 Mr. Ranabir Roychowdhury, Ld. Advocate …for the state
Md. Mumtaz Khan, J. :
The subject matter of challenge in these appeals are the judgment, order of conviction and sentence dated February 28, 2014 and March 3, 2014 respectively passed by the Additional District and Sessions Judge, Fast Track Court-VI, Alipore, South 24-Parganas in ST No. 1(6)2008 arising out of Sessions Case No. 62(2) 2008. By virtue of the impugned judgment all the appellants were convicted for commissioning of offence punishable under
Sections 364/302/34 of the Indian Penal Code
(hereinafter referred to as IPC) and were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 2000/- each in default to suffer rigorous imprisonment for one year for the offence punishable under Section 302 IPC and rigorous imprisonment for 10 years and to pay fine of Rs. 1000/- each in default to suffer rigorous imprisonment for one year for the offence punishable under Section 304 IPC.
Appellant Rabi Das @ Rabi (appellant in CRA No. 285 of 2014) was also convicted for commissioning of the offence punishable under
Section 25(1b)(a)/27 Arms Act
and was sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for one year for the offence punishable under Section 25(1b)(a) of the Arms Act and rigorous imprisonment for three years and to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for one year for the offence punishable under Section 27 Arms Act. All the sentences were directed to run concurrently.
The genesis of the case is the statement of Buddha Das (PW3), maternal uncle of the victim Bapi Das @ Lalo, made on November 28, 2007, before S.I. R.K. Sinha ( I.O.), which is discussed in a nutshell as under:-
On November 28, 2007 in the night at about 12.30 hours, PW3 saw an altercation and scuffling was going on in between his nephew Bapi Das @ Lalo and two unknown persons near his house on Kalighat road in front of Sulabh Souchagar and his elder sister Bishakha Das was shouting and trying to stop that quarrel. In the meantime, police came there and stopped the quarrel and took those two unknown persons, who disclosed their name as Gutke and Rajib Sinha, to the police station. They, thereafter, returned back to their house with Lalo.
Then on the same night around 1.00 a.m., PW3, suddenly heard shouting coming out from the side of the house of his elder sister and his sister was shouting and telling to release Lalo and Lalo was also shouting and telling his mother to save his life otherwise they will kill him. Then he (PW3) along his younger brother Gautam and many others rushed towards the house of his elder sister and saw that his sister was coming from lane while running and going towards right side (towards the Kalighat Temple). They also ran towards that direction and saw the appellants Rabi (appellant in CRA 285 of 2014), Bubai, Bhuto (appellants in CRA 224 of 2014) and Chotka (appellant in 324 of 2014) were dragging Lalo and Lalo was crying and telling them to save his life. At that time appellant Rabi Das was carrying a fire-arm. When they shouted and asked the appellants to release Lalo they threatened them telling not to proceed further and they would deal with Lalo and dragged Lalo towards Adi Ganga through a lane by the side of sulabh Souchagar. Seeing this, they also proceeded further and when reached near the unfinished corporation building, saw appellant Rabi to fire at Lalo and Lalo to fell down while crying. Lalo was wearing half pant and was bare bodied. Appellants then fled away towards Adi Ganga. They then saw a deep injury below the left chest of Lalo and blood to was ooze out from that wound. Lalo was then taken to SSKM hospital where P.W.3 narrated the incident to the doctor and after sometime Lalo expired at the Hospital.
On the basis of the above statement of PW3, a Kalighat P.S. Case No. 226 dated November 28, 2007 under Section 364/302/34 IPC and 25(1b)(a)/27 Arms Act was started against the appellants by S.I. Rudra Kanto Sinha, officer-in-charge of Kalighat P.S. and he himself took up investigation of this case. Thereafter on completion of investigation charge sheet being No. 15/08 dated January 29, 2008 under Section 364/302/34 IPC and 25/27 Arms Act was submitted against the appellants. Charges were framed on June 16, 2008 under Section 364/34 and 302/34 IPC against the appellants and in addition to that under Section 25(1b)(a)/27 Arms Act against the appellant Rabi Das @ Rabi and after they denied their involvement in the commission of the crime, trial commenced. Prosecution examined 23 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 Criminal Procedure Code (hereinafter referred to Cr.P.C.) learned court below passed the impugned judgement.
Mr. Arnab Sinha, learned advocate appearing as amicus curiae on behalf of the appellant Debandra Shaw @ Chotka Lal Shaw (appellant in CRA 324 of 2014) submitted that the impugned judgment, order or conviction and sentence cannot be sustained in law for the following reasons:-
i) There were material discrepancies and contradictions in between the evidence of eye witnesses with regard to the place of occurrence and even P.W.2, the plan maker, could not say that the site shown by him in the plan was the actual the place of occurrence or not.
ii) There were also discrepancies and contradictions in between the evidences of the doctor who conducted post-mortem examination over the dead body of the victim and P.W.5, P.W.8 and P.W.9 with regard to the intake of food by the victim which gave rise to serious doubt regarding the veracity of the prosecution story.
iii) There was no evidence on record with regard to the common intention leading towards the commission of kidnapping and murder of the victim by the appellant Debandra Shaw @ Chotka Lal.
iv) The motive behind the commission of kidnapping and murder of the victim has not been proved by the prosecution.
According to Mr. Arnab Sinha, charges against the appellant, Debendra Shaw @ Chotka Lal was not proved beyond all reasonable doubt. According to him, learned trial court did not take into consideration the aforesaid aspects of the matter for passing the impugned judgment, order of conviction and sentence against the appellant Debendra Shaw @ Chotka. Reliance is placed by Mr. Arnab Sinha, on the decision of