Gopal Mondal v. The State Of W.B.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay C.R.A. 305 of 2002 Gopal Mondal -VsThe State of West Bengal For the Appellant : Mr. Dipayan Dan (Amicus Curiae) For the State : Ms. Avishek Sinha Heard on : 19.03.2024, 12.06.2024 Judgment on : 25.04.2025 Ananya Bandyopadhyay, J.:-
1. This appeal is preferred against the judgment and order of conviction dated 27.08.2002 passed by the Learned Additional Sessions Judge, 2nd Court, Malda in Sessions Trial No.41/2002 arising out of Sessions Case No.07/2002 convicting the appellants under Sections 307/324 of the Indian Penal Code and sentencing the appellant rigorous imprisonment for 5 years and to pay fine of Rs.2000/- in default rigorous imprisonment for 2 months for the offence of under Section 307 of the Indian Penal Code.
2. The prosecution case precisely stated on 25.12.1999 at about 06:00 p.m., the son-in-law of the complainant i.e., the appellant went to his house
accompanying a person when the complainant's daughters were present. The appellant offered them 'piyaji'. They told him to kept it aside. The appellant and his companion thereafter went towards the side of the courtyard of the house and fired the victim and escaped.
3. On the basis of the written complaint filed by one GUnadhar Mondal, he started Kaliachak P.S. Case No. 343/99 dated 25.12.1999 under Sections 326/307 of the Indian Penal Code against the appellant.
4. After completion of investigation, the Police submitted charge-sheet under Sections 326/307 of the Indian Penal Code against the appellant to whom he pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution examined as many as 12 witnesses and exhibited certain documents.
6. The Learned Amicus Curiae representing the appellant submitted that:- i. The evidence of PW-2, the informant was that he along with his wife went to the Hat at Madhughat to sell Muri and on their return from the Hat, he found Sabitri Mondal i.e., his daughter on injured condition and heard the incident from her.
ii. The conviction and sentence of the appellant was mainly based on hearsay evidence inasmuch as the evidence of PW-3, PW-4 and PW-6 who came to the spot and learnt about the incident was based on hearsay.
iii. The evidence of PW-7 who claimed to an eye witness of the occurrence suffered from serious infirmities.
iv. PW-8 being the younger sister of the victim was an interested witness whose evidence was unreliable.
v. The conviction and sentence of the appellant was mainly based on testimony of PW-2, PW-3, PW-4, PW-6, PW-7 and PW-9 whose evidence was based on hearsay.
vi. PW-5, the doctor who treated the victim deposed that the victim did not disclose to have been shot by the appellant.
7. The Learned Amicus Curiae representing the appellant further submitted that:- i. There was no independent eye witness of the incident. The only eye witness i.e., PW-11, the sister of the victim had stated in her crossexamination that there was no altercation or threatening by the appellant to the victim. She further stated that she had noticed the pistol of the appellant when he was offering Piyaji to them but she did not draw her sister's attention towards it.
ii. The evidence of PW-12 who was the Investigating Officer of the case in his cross-examination revealed no blood stained apparels were seized by him. He further stated that there was no blood stain at the place of occurrence. The officer failed to seize the gun that was used. iii. The evidence of PW-5 i.e., the doctor under whom the victim was admitted, stated that from C.T. Scan he found a bullet which he removed. The bullet was not recovered thereafter. He had stated in his cross-examination that "fracture of Spinous process of 6th dorsal
vertebra may be caused by sudden and forceful impact with hard and blunt substance."
iv. The case was mainly based on hearsay evidences. Other than the victim and her sister no independent witness in the whole village found the appellant running away after the incident. PW-7 had seen the appellant entering the house of the victim. He did not however see the appellant after the incident.
8. The Learned Advocate representing the State submitted that the prosecution was able to prove its case based on corroborative evidence of the prosecution witnesses supported by the medical evidence and the appeal shall be dismissed.
9. A circumspection of the prosecution witnesses revealed as follows:- i. PW-1 deposed on 25.12.1999 he was posted as S.I. of Police, Kaliachak P.S. He also drew up formal F.I.R., on the basis of the written complaint in absence of O.C., which were marked as Exbt.-1 and Exbt.-2.
ii. PW-2 deposed that the victim was his daughter and the appellant was his son-in-law. The incident took place on 25.12.99 in the evening at about 06:00 p.m. He and his wife went to hat of Madhughat for selling fried rice. On his return, he learnt from his daughter that the appellant shot her by firearm. The appellant offered her "Piyaji" which she refused. Thereafter, his son-in-law i.e., the appellant shot his daughter by a firearm on her back side and fled. Thereafter, they
shifted his daughter to the Malda District Hospital for her treatment and informed the matter to the local P.S.
iii. PW-3 deposed to have noticed the victim girl lying with gunshot injury on her back. The victim told him that her husband i.e., the appellant fired on her back by firearm. Thereafter, they shifted the victim girl to the Malda district hospital. There was a dispute between the appellant and the victim regarding their family affairs and villagers tried to reconcile the dispute, yielded no result. Thereafter, the victim girl filed a suit against the appellant.
iv. PW-3 in his cross-examination stated he was examined by the I.O. He stated to the police that all on a sudden hearing clamour from the house of Gunadhar Mondal, he rushed to his house. He stated to the police that the victim was lying near the Shibmandir. v. PW-4 deposed that the victim girl was his cousin sister. On 25.12.99 when he was returning to his home from market, he heard hue and cry from Shibmandir of Madhughat. He asked the victim, who fired upon her by firearm. The victim girl told that her husband fired upon her by firearm on her back. Then, they took her in a taxi and admitted her in the Malda District Hospital. There was a dispute between the appellant and the victim since their marriage. The appellant tried to kill the victim. Then, the victim filed a suit for maintenance against the appellant.
vi. PW-4 in his cross-examination stated that he was examined by the I.O.
vii. PW-5 deposed that on 25.12.99 he was attached to Malda district hospital as a medical officer (surgeon) and on that day a patient namely Sabitri Mondal was admitted under him to the emergency in the female surgical ward with a provisional diagnosis of gun-shot injury. He gave her supportive treatment and advised for X-ray examination of the chest and also C.T. Scan of the chest. On examination of the C.T. Scan he found a bullet inside the back part of trunk through spinous process of 6th dorsal vertebra with fracture. He made a sketch here of the injury sites of the body of the patient which reveal that bullet entered from the backside of the body at the midline of the trunk at the level of 6. He removed the bullet from the body of the patient in the operation theatre of Malda district hospital and forwarded the bullet, thus removed, for onward transmission to the appropriate authority through superintendent district hospital, malda. All the documents were marked as Exbt.-3, Exbt.-5/5(a), Exbt.-6, Exbt.-7, Exbt.-8 and Exbt.-9.
viii. During his cross-examination PW-5 stated that the victim was admitted in the hospital at 06:40 p.m. On 27.12.99 bullet was removed from the body of the victim. There was no note in bed head ticket of the victim as to why bullet was removed two days after the admission of the patient. It was not possible for him to say whether the weapon used was of high velocity or low velocity. 6th Dorsal vertebra means sixth segment of the thoracic part of vertebral column. Fracture of spinous process of 6th may be caused by sudden
and forceful impact with hard and blunt substance. There was no mention in his bed-head ticket as to who did it occurred and there was also not in his bed-head ticket about the statement of the victim. ix. PW-6 and PW-7 reiterated the prosecution case in its entirety. x. During her cross-examination PW-7 deposed that the appellant fired the victim by a pistol in order to get rid of maintenance case. xi. PW-8 deposed on 25.12.99 at the evening the appellant i.e., her husband came to house with 'Piyaji' and asked him to eat the same. She told him that she would eat 'Piyaji' later on. Then her husband keeping the 'Piyaji', went towards the courtyard of the house. She was cutting fishes with her sister sitting by her side. Suddenly her husband returned and fired a shot at her back from a firearm and fled.
Her husband was not looking after her. As such, she had filed a case for maintenance against him. She was awarded maintenance by the court before the date of incident. Receiving bullet injury she fell on the floor. Local persons gathered at the place of occurrence immediately after the incident. They shifted her to Malda District Sadar Hospital and got her admitted there. The bullet was extracted from her body at the hospital. Her husband wanted to kill her on the date of incident.
xii. During cross-examination PW-8 deposed that her matrimonial home was in village Sahabajpur. Her paternal house was in village Madhughat. The village of her father would be 20 miles away from the village of her husband. She left her matrimonial home about 31⁄2 years
ago from that day. Thereafter she never returned to her matrimonial home. She had been awarded maintenance at the rate of Rs.1000/- per month by the Court. The incident took place on her paternal house. She was examined by the Investigating Officer. xiii. PW-9 deposed that he knew PW-8. On the relevant day, he came to a nearby bamboo clump to attend nature's call and thereafter, he went to a nearby hut. He subsequently came to learn the victim was shot by her husband. Going to the house of Gunadhar Mondal he found the victim girl in injured condition due for receiving bullet injury in front of the entrance door of the house. He also found scales of fishes lying scattered at that place. He also found one pair of plastic sandals at that place. He along with others transmitted the victim to Malda Sadar Hospital. The victim told that her husband had shot at her from a fire-gun and fled.
xiv. During his cross-examination PW-9 stated the victim's wearing apparels were stained with blood, but he did not notice whether or not the P.O. was also stained with blood. Victim was lying injured about 4/5 cubits away from the place where scales of fish and plastic sandals were lying scattered.
xv. PW-10 deposed that on 25.12.99 he was posted at Kaliachak P.S. as S.I. of police. He endorsed Kaliachak P.S. Case No.343 of 99 dated 25.12.99 to A.S.I. N.C. Das for investigation. At that time A.S.I. N.C. Das was vested with the power to investigate by the competent authority. During his cross-examination stated that A.S.I. N.C. Das
was vested with the power to investigate by the S.P., Malda. There is no order as to costs.
xvi. PW-11 deposed that she is the sister of the victim i.e., PW-8. On the relevant date, the victim was cutting fish sitting on the Varandah of their Parental house. She was sitting by the side of the victim. At that time, the appellant came there and offered piyaji to the victim but the victim refused it. On the relevant time, the appellant went on the back side of the victim and shot at the back of the victim from a fire arm. Thereafter, he fled.
xvii. During her cross-examination PW-11 deposed that police came to their house and examined her. The I.O. recorded her statement in her presence.
xviii. PW-12 deposed that on 25.12.99 he was posted at Kaliachak P.S. as A.S.I. of Police. On that day, that case was endorsed to him by the O.C., Kaliachak P.S. for investigation. He visited the P.O., examined witnesses and recorded their statements under Section 161 Cr.P.C. He prepared a rough sketch map of the P.O. with index which was marked as Exbt.-10. Thereafter, he had been to Malda Sadar Hospital. He examined the injured at the hospital and recorded her statement under Section 161 Cr.P.C. He held raid at the house of the appellant but he was found absconding. He seized the bed head ticket and medical papers of the injured from the hospital under a seizure list in presence of witnesses which was marked as Exbt.-11. After
completion of investigation he submitted charge-sheet against the appellant showing him absconder.
xix. During his cross-examination PW-12 deposed that he was vested with the power to investigate in cognizable cases by the then S.P., Malda. There was no blood stain at the P.O. He visited the P.O., on the date of incident at 22:45 hours for the first time. He did not seized scales of fishes from the P.O.
10. The Hon'ble Apex Court in the case of State of Rajasthan v. Major Singh1 observed the following:- "4. ...In our view, considering the medical evidence which corroborates the prosecution version, particularly, of the injured witness, PW 1 Jeet Kaur, there is no reason to disbelieve the evidence of the aforesaid two witnesses...."
11. The Hon'ble Supreme Court in the case of Malkiat Singh v. State of Punjab2 held the following:- "6. ...On the contrary, we find that the evidence of Mit Singh gets ample corroboration from the fact that within almost an hour of the incident he lodged the FIR wherein he not only detailed the prosecution case as to how Darbara Singh and Uttam Singh were assaulted by the appellant but also stated that the appellant had sustained minor injuries at the hands of Uttam Singh when he tried to rescue Darbara Singh. The medical evidence corroborates the ocular version of PWs and and the recovery of the kassi pursuant to the statement of the appellant which was found to contain human blood, when examined by the Forensic Science Laboratory, also lends credence to the prosecution story." 1(1999) 9 SCC 106 2(1996) 10 SCC 274
12. The Hon'ble Apex Court in Jai Karan v. State of U.P.3 held the following:- "12. Great emphasis was led on the approximate time of injury. That in no way affects the credibility of PW 2's evidence. Though the evidence of PW 1 does not specifically indicate the injury on PW 2, that is but natural. Before a young person two murders were committed and it is quite natural to create a sense of shock and minor variations in his evidence do not affect his testimony which is otherwise credible. Unless the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. (See Solanki Chimanbhai Ukabhai v. State of Gujarat [(1983) 2 SCC 174 : 1983 SCC (Cri) 379 : AIR 1983 SC 484] .) To similar effect is the decision in State of U.P. v. Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928 : AIR 1988 SC 2154] ."
13. In Balu SudamKhalde v. State of Maharashtra4, the Hon'ble Supreme Court held the following:- "26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
3(2003) 12 SCC 655 42023 SCC OnLine SC 355
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence.
Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
14. The Hon'ble Supreme Court held the following in Thathanna v. State of A.P.5:- "10. ...The evidence of A-3, A-8 and A-9 though is not accepted in respect of their own assailants but the fact that the occurrence has taken place is accepted and that in respect of these appellants the other witnesses have also consistently spoken regarding the parts played by the three appellants. The nature of the injuries inflicted by these three accused to that extent is corroborated by medical evidence and also spoken to by the other eyewitnesses consistently and the same has been accepted. For all these reasons we see no ground to interfere."
15. The Hon'ble Supreme Court in the case of Leela Ram v. State of Haryana6 held the following:- "9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety.
Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105 : AIR 51994 Cri LJ 632 6(1999) 9 SCC 525
1985 SC 48] . In para 10 of the Report, this Court observed: (SCC pp. 514-15) "10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
10. In a very recent decision in Rammi v. State M.P. [(1999) 8 SCC 649] with Bhura v. State of M.P. [(1999) 8 SCC 649] this Court observed: (SCC p. 656, para 24) "24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly
escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
This Court further observed: (SCC pp. 656-57, paras 25-27) "25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below: '155. Impeaching credit of witness.-The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him- (1)-(2)
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;'
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be 'contradicted' would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any
former statement of the witness, but it cautions that if it is intended to 'contradict' the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to 'contradict' the witness.
27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Supp (2) SCR 875] )."
11. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.
12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment - sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire
confidence in the mind of the court to accept the stated evidence though not however in the absence of the same.
13. In this context, reference may be made to the decision of this Court in the case of Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696] wherein this Court in para 11 of the Report observed: (SCC pp. 245-46) "Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties.
The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."
In para 13 of the Report this Court further observed: (SCC pp. 24647) "The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded.
The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
16. Though the Investigating Agency failed to recover the bullet, the offending weapon as well as to collect the blood stained earth and the blood stained wearing apparels of the victim for forensic examination, such lapses on the part of the Investigating Agency should not destabilize the prosecution case and render the appellant inextricable from impunity as the evidence of the injured victim ( corroborated the medical evidence further fortified by the evidence of the eye witness (PW-11) being the sister of the victim. The doctor (PW-5) being an independent impartial person corroborated the prosecution case of existence of bullet in the body of the victim (PW-8) and subsequent removal of the same to have been penetrated into the body of the victim through a shot of firearm. The lapses on the part of the Investigating Agency to prove the ancillary issues became redundant in the existence of predominantly reliable, credible and corroborative evidence of the victim (PW-8), the eye witness (PW-11) as well as the medical evidence of PW-5.
17. Under such circumstances, this Court is not inclined to interfere with the judgment and order of conviction passed by the Learned Trial Court which are reasoned both the context of law and facts.
18. In view of the above discussions, the instant criminal appeal being CRA 305 of 2002 is dismissed.
19. There is no order as to costs.
20. I record my appreciation for the able assistance rendered by the Learned Advocate Mr. Dipayan Dan as Amicus Curiae representing the appellant in disposing of this appeal.
21. Trial Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action.
22. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)