Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 298 OF 2006
ANJAN DASGUPTA .......APPELLANT
VERSUS
THE STATE OF WEST BENGAL & ORS. ......RESPONDENT
JUDGMENT
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment
dated 16.02.2006 of Calcutta High Court, by which
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judgment, the High Court reversed the order of
acquittal granted by Additional Sessions Judge. The
High Court convicted the appellants Anjan Dasgupta
and one Biswanath Paul under Section 302/34 of IPC
by awarding life sentence and a fine of Rs. 2000.00.
2. The prosecution case in brief is that, at
th
4.50 PM of 16 June, 2000 Debol Kumar Ghosh, the
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deceased was sitting inside the Party Office of
CPI(M) at R.B.C. Road, Naihati, North 24Paraganas at
which time a maruti gypsy car stopped, from which the
appellants got down. At the same time, four persons
on two bicycles came from the direction of the Mitra
Bagan Road and stopped right in front of CPI(M)
Party Office. The appellant by hand indicated Debol
Kumar Ghosh to four persons who had arrived there on
two bicycles, and one of them fired from pipe gun on
Debol Kumar Ghosh. Leaving two cycles, all four
persons got in the Maruti Gypsi which speed up
towards Gauripur. Sandip Ghosh, the son of Debol
Kumar Ghosh who was sitting inside his medicine shop,
namely, “Ma Medical Stores” at R.B.C. Road, Naihati,
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North 24Parganas situated at 5 cubits from CPI(M)
Office saw the above incident and rushed to CPI(M)
Party Office and found his father Debol Kumar Ghosh
had sustained bullet injuries on his chest and was
lying on the floor. The elder brother of Sandip
Ghosh, upon hearing the sound, also came to the Party
Office. The victim, Debol Kumar Ghosh was thereafter
taken to Green View Nursing Home where he was
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declared dead by the doctors at 5.00 PM.
3. The information of murder of Debol Kumar Ghosh
was received by the Police Officials of the Naihati
Police Station, who immediately rushed to the scene
of occurrence. After receiving an R.T. message at
17.15 hours, the Sub Inspector Tapan Kumar also
arrived at the scene at 17.40 hrs and remained at the
scene till 21.05 hours. Sandip Ghosh went to the
police station at about 7.308.00 PM alongwith one
Arun Dey. Arun Dey wrote the complaint at dictation
of Sandip Ghosh and a written complaint was submitted
to the police station. The FIR No. 99 of 2000 was
registered under Section 302/34 of the IPC and
Section 25/27 Arms Act, naming accused Anjan
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Dasgupta, Biswanath Paul, Sintu alias Saroj Roy and
Bhola Kundu.
4. Tapan Kumar, Sub Inspector received the FIR
while he was still at the scene of occurrence. Sub
Inspector Manick Chakraborty, on dictation of Tapan
Kumar with a Constable prepared the inquest report of
the dead body at Green View Nursing Home at 22.35
hours. After the inquest report was prepared late in
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the evening, the dead body was sent for postmortem.
After completion of the investigation, accused Anjan
Dasgupta, Bhola Kundu, Sintu alias Saroj Roy and
Biswanath Paul were charged for the commission of the
offence under Section 302 read with Section 34 of the
IPC and Basudev Paul was charged for offence under
Section 212 of the IPC.
5. Prosecution examined thirty one witnesses in
support of its case; prosecution also produced
documentary evidences, namely, statements recorded
under Section 164 Cr. P.C. and certain other
documentary evidences. Accused persons adduced no
oral evidences. Accused were examined under Section
313 Cr. P.C.
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6. The learned Additional Sessions Judge acquitted
accused Biswanath Paul for offence under Section 212
and all other accused from charge of Section 302/34 .
State filed an appeal against the acquittal order.
The complainant also filed a Revisional Application
CRR No. 2263 of 2002, challenging the order of the
acquittal. The High Court vide its judgment dated
16.02.2006 set aside the order of the acquittal as
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regards to Anjan Dasgupta and Biswanath Paul. It,
however, confirmed the acquittal with regard to the
Sintu alias Saroj Roy and Bhola Kundu. Acquittal of
Basudev Paul was also affirmed. Appellant Anjan
Dasgupta was sentenced to undergo life imprisonment
with a fine of Rs. 2000.00/. Anjan Dasgupta has
filed this appeal challenging his conviction and
sentence.
7. We have heard Shri Kapil Sibal learned senior
counsel appearing for the appellant, Shri Rupesh
Kumar learned senior counsel appearing for the
Respondent No. 2 and Parijat Sinha learned counsel
for the State of West Bengal.
8. Shri Kapil Sibal learned senior counsel for the
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appellant, in support of the appeal contends that
learned Sessions Judge after considering entire
evidence on record had rightly come to the conclusion
that evidence led by prosecution contradicts the
prosecution story, as to the genesis of occurrence,
hence did not commit any error in acquitting the
appellant. It is contended that FIR was antedated
and antetimed as rightly held by the trial court.
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He submitted that from the evidence of PW 1 who gave
the written complaint for lodging an FIR, it is clear
that he went to the police station after 7.30 PM,
hence the FIR could not have been lodged before
7.308.00 PM and mention of time of receiving the
information in the FIR as 17.35 hour clearly proves
that it was antetimed.
9. Shri Kapil Sibal further submits that FIR, in
fact was lodged after inquest report and inquest
report according to the evidence was prepared after
the 22.35 hours. It is submitted that antetiming
and antedating of the FIR was with object to falsely
implicate the accused since by that time prosecution
story was still in vacuum. Shri Sibal referred to
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various contradictions in the statement of witnesses
as noticed by trial court. He submits that High
Court committed error in reversing the order of
acquittal. It is well settled that if on an evidence
two views are possible and the trial court exercises
its discretion in having acquitted the accused, High
Court ought not to interfere with the acquittal
order. The FIR was dispatched from the police
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station with great delay, which could be placed
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before the Magistrate only on 22 July, 2000, which
also clearly proves that FIR was not registered at
the time and the date when it is claimed. Mention of
U.D. Case No. 43/2000, in FIR causes suspicion and
serious doubts with regard to the authenticity of the
FIR and subsequent inquest report. Prosecution failed
to prove any motive for the murder and in absence of
any motive, appellant could not have been convicted.
10. Learned counsel appearing for the State as well
as complainant have refuted submissions of learned
counsel for the appellant. High Court, while
reversing the acquittal order has properly
reappraised the evidence and finding the guilt of the
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accused, conviction has been recorded. There are
more than one eyewitnesses who have proved by their
evidence, place of occurrence, death by bullet
injury, presence and participation of the appellant
in the crime, which has been established beyond any
reasonable doubt. There was no delay or discrepancy
in the FIR. FIR, being a genuine document, trial
court committed error in holding that FIR is ante
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timed and antidated. The High Court after correctly
appreciating the entire evidence on record has
rightly reversed the acquittal order. With regard to
the delay in sending the copy of the FIR to the
Magistrate, nothing was asked in the
crossexamination of the I.O. Further, although much
argument was raised before the trial court regarding
antetiming and antedating of FIR but no questions
were put before the I.O. and the sub inspector who
recorded the FIR, when they appeared before the
court.
11. First, we proceed to consider the submissions of
the learned counsel for the appellant regarding
antetiming and antedating of the FIR. The trial
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court had formulated point No. 3 as 'was the real FIR
suppressed and the FIR proved as antedated'. Trial
court had observed that PW 1 went to the police
station at about 7.30/8.00 PM but in the formal FIR
Exh. 9, it is recorded that information of the
commission of offence was received at 17.35 hours on
th
16 June, 2000. This entry in Exh. 9 contradicts
the aforesaid evidence of the PW 1 as regard to the
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time of lodging of complaint to the police station.
Argument was raised before the trial court that FIR
was, not only antetimed but also antedated, as such
no reliance should be placed on the Exh. 3.
Magistrate had perused both the written complaint and
nd
the FIR, which bore the endorsement “seen” dated 22
July 2000. Trial court held that FIR was dispatched
nd
from the police station on 22 June, 2000 and was
rd
received at the Magistrate Court on 23 June, 2000.
The trial court had recorded its conclusion in
following words at Page No. 107:
“As the FIR was antetimed and
there was abnormal unexplained delay
in dispatching the FIR to the office
of the learned Magistrate as well as
putting up the same before the
learned Magistrate, adverse inference
should be drawn against the
prosecution. The FIR cannot be
attached with much value.”
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Following observations were made by trial court at
Page No. 106:
"Even if the FIR was lodged after
730/8 p.m. as stated by the P.W.1 it
would not lose it's value in it's
entirety because it is not established
that the FIR proved at the trial was a
subsequent one or that it was written
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on any date after 16.6.2000”
12. Now, coming to the evidence on record, there is
evidence of PW 1 that he went to the police station
between 7.30/8.00 PM and the First Information Report
was written by Arun Dey on his dictation. Both the
above facts have been proved by statement of PW 1
Sandip Ghosh and PW 5 Arun Dey; both have signed the
written complaint. Shri Sunil Giri ASI PW 29 proved
the recording of the FIR on the basis of written
complaint given by Sandip Ghosh. No suggestion was
put to PW 29 regarding the date or time of recording
of the FIR.
13. Shri Sunil Giri has proved the FIR, he further
th
proved that he received the FIR on 16 June, 2000,
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he proved his signature on the FIR also. He denied
the suggestion that FIR was written on subsequent to
th
16 June, 2000. Thus there is no case of antedating
the FIR, even the trial court did not accept the
submission that FIR was antedated.
14. Now we come to the main submissions, that is,
antetiming of the FIR and delayed dispatch of the
FIR to the court of the Magistrate. The sequence of
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the events, as it emerges from the evidence brought
before the court, i.e. the evidence of PW 1 and PW
30, there is no doubt that PW 1 went to the police
station at about 7.30 PM. The statement of PW 30, in
this context, is very relevant. PW 30 in his
th
statement has stated that on 16 June, 2000, when he
was posted at Police Station, Naihati, he was at
village Shibdaspur, in connection with another case,
when at 17.15 hours he received an RT Message that at
Mitra Bagan Crossing one Debol Kumar Ghosh had been
shot dead. He arrived at the spot at about 17.40
hours and remained there till 21.05 hours. He further
stated that he prepared the sketch map on the spot
and seized the certain articles including two
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bicycles from the entrance of the party office room.
The statement in his examinationinchief following
was stated by I.O.:
“While I was at village
Shibdaspur under P. S. Naihaati in
connection with another case at
17.15hrs. I received an R. T. message
that at Mitrabagan crossing one Debal
Kr. Ghosh had been shot dead. I then
directly rushed to Mitrabagan More. I
arrived there at 1740 hrs. There
was law and order problem over the
murder. There was blockage of road.
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I received the FIR from the Police
Station at the said Mitrabagan
crossing. I had been engaged with
law and order maintaing job upto
21.05 hrs. I went to the C.P.I.M
party office at Mitrabagan crossing
and prepared a sketch map thereof
with index.”
15. In the crossexamination, he has stated that ASI
Sunil Giri had send him the R.T. message. Sunil Giri
ASI thus had received the information of the murder
of Debol Kumar Ghosh before 17.15 hours, arrival of
Sub Inspector Tapan Kumar Mishra I.O. on the scene at
the time as claimed is proved; I.O. also went to the
Green View Nursing Home, accompanied by S.I. Manick
Chakraborty where dead body of the deceased, Debol
Kumar Ghosh was laid. Under the dictation of the
I.O., the inquest report was prepared by Manick
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Chakraborty Sub Inspector of Police, which has
started on 22.35 hours. The inquest report which has
been proved by witnesses and I.O. clearly records the
following:
"Investigation report over the dead
body of Deceased Debol Kumar Ghosh
(48) years son of late Kiran Chandra
Ghosh of 212/1 R.B.C. Road P.S.
Naihati District North 24Paraganas
(Illegible)in C/W Naihati P.S. U.D.
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Case No. 43/2000 dt. 16.62000 and
Naihati P.S. Case No. 99 of 16.6.2000
under Section 302/34 I.P.C. & 25/27
Arms Act.”
16. The inquest report thus mentioned both unnatural
th
death case (U.D. No. 43/2000) dated 16 June, 2000
th
and P.S. Case No. 99 of 16 June, 2000 under Section
302/34 of IPC and 25/27 Arms Act. From the above,
there can be no doubt that FIR was registered before
the inquest report of dead body started. The
evidence indicates that information of death was
received by the police station before 17.15 hours and
police officials arrived at the spot immediately and
the I.O. arrived at the spot at 17.45 PM, by that
time other police officials had already reached. The
receipt and the recording of First Information Report
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is not a condition precedent for setting in motion of
a criminal investigation. When the information that
Debol Kumar Ghosh is shot dead, police was duty bound
to start investigation. This Court in APREN JOSEPH
ALIAS CURRENT KUNJUKUNJU AND OTHERS VERSUS THE STATE
stated following in
OF KERALA 1973 (3) SCC 114
paragraph 11:
“As observed by the Privy Council
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in K. E. v. Khwaja, the receipt and
recording of information report by
the police is not a condition
precedent to the setting in motion of
a criminal investigation.”
17. Much emphasis has been laid down by the learned
counsel for the appellant on the fact that, FIR
notes in Column C, 'time 17.35'. The time 17.35
hours, we have already noted that Sunil Giri Sub
Inspector of Police has recorded in the First
Information Report. He had already received the
information before 17.15 hours since he had sent the
R.T. message to the I.O. Information of cognizable
offence having been received by the ASI, with regard
to the mention of time at 17.35 in the FIR, which was
recorded after 17.30 PM could have been explained if
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any questions were put to ASI Sunil Giri. From the
crossexamination of ASI Sunil Giri, it does not
appear that any question was asked regarding the
recording time 17.35 in the FIR. The possibility
cannot be ruled out that while registering the FIR on
the basis of written complaint, the ASI recorded the
time when he received the information in the police
station of the death of Debol Kumar Ghosh. In any
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view of matter, the above in no manner diminishes the
value or credibility of the FIR.
18. The information of murder was received before
17.35 hours at the police station which is fully
proved by arrival of the police officers much before
17.40 hours as proved by I.O. Hence mention of the
time at 17.35 can be treated as the time of receipt
of the information of the offence in the police
station and there is no such inconsistencies in the
FIR so as to come to the conclusion that FIR was
antetimed.
19. FIR as well as the inquest report both mentioned
the accused Anjan Dasgupta. The inquest report has
not been questioned on any account. The offence,
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having been committed at around 45 PM, registration
of the FIR at the police station between 7.30 to 8.00
PM does not cause any reason to draw any adverse
inference, more so, when after the occurrence, the
deceased was taken to the nearby nursing home where
he was declared dead and body remained there till the
inquest was over. The another circumstance, which
have been heavily relied by trial court and
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reiterated before us by learned counsel for the
appellant is dispatch of the FIR to the Magistrate
with delay. This Court in Pala Singh v. State of
Punjab 1972 (2) SCC 640 has held that delay in
forwarding the FIR to court is not fatal in a case in
which investigation has commenced promptly on its
basis.
20. The I.O. after receipt of the information of an
offence by R.T. message had arrived at the scene on
17.40 hours, which clearly proves the prompt
commencement of the investigation. FIR was dispatched
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on 22 June, 2000 which has also been accepted by
trial court. When no questions were put to I.O. in
his crossexamination regarding the delay in
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dispatch, at the time of hearing, the accused cannot
make capital of the said delay in forwarding the FIR.
This Court in Rabindra Mahto and Another v. State of
Jharkhand 2006 (10) SCC 432 has held that in every
case from the mere delay in sending the FIR to the
Magistrate, the Court would not conclude that the FIR
has been recorded much later in time than shown. It
is only extraordinary and unexplained delay, which
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may raise doubts regarding the authenticity of the
FIR.
21. The present is the case, where recording of the
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FIR on 16 June, 2000 itself has been proved,
accepted by the trial court also, thus mere dispatch
nd
of the FIR on 22 June, 2000 from the police station
to the Magistrates' Court has no bearing on the basis
of which any adverse presumption can be drawn. From
the above discussion, we are of the clear view that
the FIR was genuine FIR and trial court committed an
error in drawing adverse inference against the
prosecution and refusing to attach value to the FIR.
22. The conclusion of the learned Sessions Judge that
the FIR was manipulated is thus found to be erroneous.
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FIR has been proved by the evidence as noted above.
Thus, one of the basis of the decision of the Sessions
Judge for discarding the prosecution case is knocked
out.
23. Now, we came to the consideration of oral evidence
by Sessions Judge. Both the deceased and accused belong
to the same locality. The occurrence was witnessed by
several persons, including the eyewitnesses who
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appeared before the court and proved the prosecution
case, PW.1 Sandip Ghosh, PW.2 Vijay Das, PW.3 Kamal
Nath, PW.4 Manabendra Nag, PW.6 Prasanta Ghosh, PW.10
Shashanka Nath and PW 1 Shankar Ghosh.
24. PW.1 Sandip Ghosh, the son of the deceased was in
his medical shop “Maa Medical Stores” which is at the
distance of about 5 cubits from CPI(M) office. In his
eyewitness account, he stated that at 04:50 PM when he
was at his shop, he found a motor vehicle, a Maruti
Gypsy to come from side of Naihati Station and got
itself parked on R.B.C. Road after crossing Mitrapara
and R.B.C. Road Crossing. He saw Biswanath Paul and
Anjan Dasgupta got down from the said motor vehicle and
at that very moment, four boys about age 22/23 years
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came in front of aforesaid party office from side of
Mitra Bagan by two Bicycle. He further saw Anjan
Dasgupta and Biswanath Paul to point out his father
sitting inside the party office. One of the said boys
took out a pipe gun and shoot Debol Ghosh. Anjan
Dasgupta further observed that “Hay Gechi Tara Tari
Chale Aiy”. Thereafter, the said vehicle left. In the
crossexamination, the witness stood firm with his eye
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witness accound and could not be shaken.
25. PW 2 Vijay Das on the fateful day was standing at
the gate of the party office inside of which Debol
Ghosh was sitting. Debol Ghosh after taking the tea
asked him to bring the beetle leave. He went to the
beetle shop in front of the party's office on the
other side of road, where he saw Anjan Dasgupta and
Biswanath Paul to get down from Maruti Gypsy at the
crossing of R.B.C. Road. At that time four persons by
two bicycles came from the Mitrapara side. One of the
said four boys brought a shooter machine and fired
Debal Ghosh. Thereafter, all left towards Gouripur.
26. PW 3 Kamal Nath, who has a shop on the footpath in
front of the CPI(M) party office, stated in his
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th
evidence that in the afternoon of 16 June at 03:00 PM
to 04:00 PM, he was sitting inside the party office and
he went out of the office room and was standing outside
smoking a 'cigarette'. At that time, a red Gypsy came
and stationed at the distance of 3 cubits from him,
from which Anjan Dasgupta and Biswanath Paul got down.
At that very time, 4 persons came by 2 Bicycles from
the side of Mitra Bagan. Two of the said persons fired
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from outside the party office and shot Debol Ghosh.
They left the bicycles and left the place by Gypsy
towards Gouripur.
27. The almost similar eyewitness account has been
narrated by other eyewitness who were examined by
Prosecution.
28. Learned Sessions Judge pointing out certain
discrepancy/contradiction in the statement held that
the evidence by eyewitnesses does not inspire
confidence. Learned Sessions Judge had also made
observation that no explanation had been offered by the
prosecution as to why statement of witnesses under
Section 164 Cr. P.C. was recorded with delay. The
statement given by the eyewitness in the court cannot
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be discarded merely on the grounds that statement which
got recorded under Section 164 Cr.P.C. by the
prosecution was not immediately recorded.
29. The crossexamination of I.O. PW.31 does not
indicates that the any explanation was asked from him
regarding delayed recording of the statement under
Section 164 Cr.P.C.
30. The High Court has also reappraised the entire
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oral evidence and had observed that eyewitnesses stick
to their earlier statements except one or two witnesses
who attempted to add something during the statements.
Following had been recorded by the High Court at Page
22:
“ ...We have carefully examined the
statement of the witnesses and also
their statement recorded under
Section 164 Cr.P.C. and we find that
there was attempt on the part of one
or two witnesses to add something
more during their statement recorded
before the learned Magistrate, but,
as a whole all the eyewitnesses
sticked to their earlier statements
given before the I.O. and they made
the same statement before the trial
Court during their examination...”
31. After looking to the evidence of eyewitnesses,
High Court has observed that all of them had deposed of
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arrival of Maruti Gypsy Vehicle, Presence of Anjan
Dasgupta and Biswanath Paul on the place of occurrence
and about giving instructions to shoot Debol Ghosh and
subsequently helping the persons to flee from the place
of occurrence by getting inside the Maruti Gypsy
Vehicle. Following are the findings recorded by the
High Court:
“ ...From the statements of PW.1,
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PW.2, PW.3, PW.4, PW.6, PW.10 and
also from PW.21 we find that all of
them deposed about arrival of a
maruti gypsy vehicle, presence of
Anjan Dasgupta and Biswanath Paul on
the place of occurrence and also
about giving of instruction to shot
at Debal Ghosh and subsequently for
helping the persons to flee from the
place of occurrence by getting inside
the maruti gypsy vehicle...”
32. The appreciation of evidence of eyewitnesses and
discarding the aforesaid evidences by the learned
Sessions Judge was on flimsy ground and based on
surmises and conjectures which has been correctly
reappreciated by the High Court. For instance, with
regard to eyewitness PW 2 Vijay Das, learned Sessions
Judge discard the evidence of PW 2 by giving following
reasons:
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“ ...In the statement recorded under
Section 164 Cr.P.C. marked Exhibit 1
this gentleman told that on hearing
sound of firing he rushed and found
that Debal Ghosh was shot and one was
going to pick up the bicycle. At that
time he tried to catch the said man
and Anjan said “be quickly the pigs”.
In the statement recorded under
Section 164 Cr.P.C. which was made
more than two months after the
alleged date of occurrence did not
name the person whom he tried to
catch. So this omission contradicts
the aforesaid evidence of the PW.2.
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The PW2's evidence being contradicted
by his earlier belated statement
under Section 164 Cr.P.C as well as
suffers from improbability cannot be
relied on...”
33. The mere fact that the witness did not name the
person whom he tried to catch does not lead to any
contradiction since all eyewitness have stated that
four persons came by 2 bicycles one of whom shoot Debol
Ghosh.
34. PW 2 stated that he tried to catch one person of
the aforesaid and omission not to name the person does
not lead to any contradiction nor can result in
discarding the evidence. The observation of learned
Sessions Judge that the evidence suffers from the
improbability and cannot be relied is also not based on
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any valid reason.
35. Some minor contradiction has been pointed out by
learned Session Judge in the evidence of other
eyewitnesses which have rightly been discarded by the
High Court and the High Court after reappreciating the
evidence has rightly come to the conclusion that the
occurrence as well as participation of Anjan Dasgupta,
the appellant was proved. Following conclusion has been
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recorded by the High Court:
“ ...Thus from the evidence on record
we get that several witnesses of the
locality who were present on the
place of occurrence had noticed Anjan
Dasgupta and Biswanath Paul on the
place of occurrence and also noticed
their active participation in the
matter of murder of Debal Ghosh and
in this context we want to record
that the learned trial Court totally
misdirected itself in the matter of
appreciation of the evidence of the
eyewitness.”
36. High Court was conscious that the case where
acquittal has been made, while entertaining an appeal
over an order of acquittal if two views are possible on
making proper appreciation of available evidence the
view going in favour of accused have to given
importance. It is well settled that in case where an
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order of acquittal has been made on improper and
erroneous appreciation of evidence, it is always open
to the court of appeal to make proper and reasonable
appreciation evidence and differ from the order of
acquittal and in such event, it shall never hesitate in
reversing the same. Ultimately, the High Court
concluded:
“ ...From scanning of the entire
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prosecution evidence and having
regard to submission of the
respective parties, we are
constrained to hold that the learned
trial Court was totally wrong both in
law and, in fact, in making its
observation that the FIR was
antedated and anti timed and a
manipulated one. The trial Court also
erred in law by discarding the FIR
for delay in dispatching the same in
the Court of the Magistrate. ”
37. We are of the opinion that the findings and
conclusion recorded by the High Court are based on
the correct appreciation of evidence and do not
suffer from any error. The judgment of the High Court
reversing the acquittal recorded by learned Sessions
Judge needs no interference. There are no merits in
this appeal. The appeal is dismissed. The appellant
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is on bail his bail bonds are cancelled and the
appellant is directed to be taken into custody
forthwith.
.............................................J.
(PINAKI CHANDRA GHOSE)
..........................................J.
(ASHOK BHUSHAN)
NEW DELHI;
NOVEMBER 25, 2016.
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