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 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 4.50 PM of 16th June,
2000 Debol Kumar Ghosh, the deceased was sitting inside the Party Office of
CPI(M) at R.B.C. Road, Naihati, North 24-Paraganas 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, North 24-Parganas 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 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 7.30-8.00 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 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 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.
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 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 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 ante-dated and ante-timed as rightly held by the
trial court. 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 7.30-8.00 PM and mention of time of receiving the information in the
FIR as 17.35 hour clearly proves that it was ante-timed.
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 ante-timing and ante-dating 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 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 station with great delay, which
could be placed before the Magistrate only on 22nd 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 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- timed
and anti-dated. 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 cross-examination of the I.O. Further, although much argument
was raised before the trial court regarding ante-timing and ante-dating 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 ante-timing and ante-dating of the FIR. The
trial court had formulated point No. 3 as 'was the real FIR suppressed and
the FIR proved as ante-dated'. 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 16th June, 2000. This entry in Exh. 9 contradicts the
aforesaid evidence of the PW 1 as regard to the time of lodging of
complaint to the police station. Argument was raised before the trial court
that FIR was, not only ante-timed but also ante-dated, as such no reliance
should be placed on the Exh. 3. Magistrate had perused both the written
complaint and the FIR, which bore the endorsement “seen” dated 22nd July
2000. Trial court held that FIR was dispatched from the police station on
22nd June, 2000 and was received at the Magistrate Court on 23rd 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.”
Following observations were made by trial court at Page No. 106:
"Even if the FIR was lodged after 7-30/8 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 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 proved that he
received the FIR on 16th June, 2000, he proved his signature on the FIR
also. He denied the suggestion that FIR was written on subsequent to 16th
June, 2000. Thus there is no case of ante-dating the FIR, even the trial
court did not accept the submission that FIR was ante-dated.
14. Now we come to the main submissions, that is, ante-timing of the FIR
and delayed dispatch of the FIR to the court of the Magistrate. The
sequence of 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 statement has stated that on
16th 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
bicycles from the entrance of the party office room. The statement in his
examination-in-chief 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 17-40 hrs. There was law and
order problem over the murder. There was blockage of road. 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 cross-examination, 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 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 24-Paraganas (Illegible)in C/W Naihati P.S. U.D. 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 death case (U.D. No.
43/2000) dated 16th June, 2000 and P.S. Case No. 99 of 16th 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 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 OF KERALA 1973 (3) SCC 114 stated following in
paragraph 11:
“As observed by the Privy Council 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 any questions were put to ASI
Sunil Giri. From the cross-examination 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 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 ante-timed.
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, having been committed at around 4-5 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 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 on 22nd June,
2000 which has also been accepted by trial court. When no questions were
put to I.O. in his cross-examination regarding the delay in 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 may raise doubts regarding the
authenticity of the FIR.
21. The present is the case, where recording of the FIR on 16th June,
2000 itself has been proved, accepted by the trial court also, thus mere
dispatch of the FIR on 22nd 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. 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 eye-witnesses who 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 eye-witness 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 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 cross-examination, the witness stood firm
with his eye- 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 evidence that in the afternoon of 16th
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 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 eye-witness account has been narrated by other eye-
witness who were examined by Prosecution.
28. Learned Sessions Judge pointing out certain discrepancy/contradiction
in the statement held that the evidence by eye-witnesses 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 eye-witness in the court cannot 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 cross-examination 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 re-appraised the entire oral evidence and had
observed that eye-witnesses 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 eye-witnesses 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 eye-witnesses, High Court has
observed that all of them had deposed of 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, 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 eye-witnesses and discarding the
aforesaid evidences by the learned Sessions Judge was on flimsy ground and
based on surmises and conjectures which has been correctly re-appreciated
by the High Court. For instance, with regard to eye-witness PW 2 Vijay Das,
learned Sessions Judge discard the evidence of PW 2 by giving following
reasons:
“...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. 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 eye-witness 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 any valid reason.
35. Some minor contradiction has been pointed out by learned Session
Judge in the evidence of other eye-witnesses which have rightly been
discarded by the High Court and the High Court after re-appreciating 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 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 eye-
witness.”
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 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 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 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.
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 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 4.50 PM of 16th June,
2000 Debol Kumar Ghosh, the deceased was sitting inside the Party Office of
CPI(M) at R.B.C. Road, Naihati, North 24-Paraganas 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, North 24-Parganas 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 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 7.30-8.00 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 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 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.
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 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 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 ante-dated and ante-timed as rightly held by the
trial court. 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 7.30-8.00 PM and mention of time of receiving the information in the
FIR as 17.35 hour clearly proves that it was ante-timed.
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 ante-timing and ante-dating 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 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 station with great delay, which
could be placed before the Magistrate only on 22nd 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 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- timed
and anti-dated. 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 cross-examination of the I.O. Further, although much argument
was raised before the trial court regarding ante-timing and ante-dating 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 ante-timing and ante-dating of the FIR. The
trial court had formulated point No. 3 as 'was the real FIR suppressed and
the FIR proved as ante-dated'. 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 16th June, 2000. This entry in Exh. 9 contradicts the
aforesaid evidence of the PW 1 as regard to the time of lodging of
complaint to the police station. Argument was raised before the trial court
that FIR was, not only ante-timed but also ante-dated, as such no reliance
should be placed on the Exh. 3. Magistrate had perused both the written
complaint and the FIR, which bore the endorsement “seen” dated 22nd July
2000. Trial court held that FIR was dispatched from the police station on
22nd June, 2000 and was received at the Magistrate Court on 23rd 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.”
Following observations were made by trial court at Page No. 106:
"Even if the FIR was lodged after 7-30/8 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 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 proved that he
received the FIR on 16th June, 2000, he proved his signature on the FIR
also. He denied the suggestion that FIR was written on subsequent to 16th
June, 2000. Thus there is no case of ante-dating the FIR, even the trial
court did not accept the submission that FIR was ante-dated.
14. Now we come to the main submissions, that is, ante-timing of the FIR
and delayed dispatch of the FIR to the court of the Magistrate. The
sequence of 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 statement has stated that on
16th 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
bicycles from the entrance of the party office room. The statement in his
examination-in-chief 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 17-40 hrs. There was law and
order problem over the murder. There was blockage of road. 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 cross-examination, 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 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 24-Paraganas (Illegible)in C/W Naihati P.S. U.D. 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 death case (U.D. No.
43/2000) dated 16th June, 2000 and P.S. Case No. 99 of 16th 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 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 OF KERALA 1973 (3) SCC 114 stated following in
paragraph 11:
“As observed by the Privy Council 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 any questions were put to ASI
Sunil Giri. From the cross-examination 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 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 ante-timed.
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, having been committed at around 4-5 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 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 on 22nd June,
2000 which has also been accepted by trial court. When no questions were
put to I.O. in his cross-examination regarding the delay in 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 may raise doubts regarding the
authenticity of the FIR.
21. The present is the case, where recording of the FIR on 16th June,
2000 itself has been proved, accepted by the trial court also, thus mere
dispatch of the FIR on 22nd 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. 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 eye-witnesses who 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 eye-witness 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 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 cross-examination, the witness stood firm
with his eye- 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 evidence that in the afternoon of 16th
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 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 eye-witness account has been narrated by other eye-
witness who were examined by Prosecution.
28. Learned Sessions Judge pointing out certain discrepancy/contradiction
in the statement held that the evidence by eye-witnesses 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 eye-witness in the court cannot 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 cross-examination 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 re-appraised the entire oral evidence and had
observed that eye-witnesses 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 eye-witnesses 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 eye-witnesses, High Court has
observed that all of them had deposed of 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, 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 eye-witnesses and discarding the
aforesaid evidences by the learned Sessions Judge was on flimsy ground and
based on surmises and conjectures which has been correctly re-appreciated
by the High Court. For instance, with regard to eye-witness PW 2 Vijay Das,
learned Sessions Judge discard the evidence of PW 2 by giving following
reasons:
“...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. 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 eye-witness 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 any valid reason.
35. Some minor contradiction has been pointed out by learned Session
Judge in the evidence of other eye-witnesses which have rightly been
discarded by the High Court and the High Court after re-appreciating 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 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 eye-
witness.”
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 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 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 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.
