Anjan Dasgupta v. State Of West Bengal And Others

Ashok Bhushan, J.— This appeal has been filed against the judgment dated 16-2-2006 2006 SCC OnLine Cal 80, (2006) 1 Cal LJ 401 of the Calcutta High Court, by which judgment, the High Court reversed the order of acquittal granted by the Additional Sessions Judge. The High Court convicted the appellants Anjan Dasgupta and one Biswanath Paul under Sections 302/34 IPC by awarding life sentence and a fine of Rs 2000.

2. The prosecution case in brief is that, at 4.50 p.m of 16-6-2000 Debol Kumar Ghosh, the deceased was sitting inside the party office of CPI (M) at R.B.C Road, Naihati, North 24 Paragnas 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 Gypsy which sped up towards Gouripur.

3. 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 p.m

4. The information of murder of Debol Kumar Ghosh was received by the police officials of Naihati Police Station, who immediately rushed to the scene of occurrence. After receiving an RT message at 1715 hours, the Sub-Inspector Tapan Kumar also arrived at the scene at 1740 hours and remained at the scene till 2105 hours. Sandip Ghosh went to the police station at about 7.30-8.00 p.m along with one Arun Dey. Arun Dey wrote the complaint at dictation of Sandip Ghosh and a written complaint was submitted to the police station. FIR No. 99 of 2000 was registered under Sections 302/34 IPC and Sections 25/27 of the Arms Act, naming accused Anjan Dasgupta, Biswanath Paul, Sintu alias Saroj Roy and Bhola Kundu.

5. 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 2235 hours. After the inquest report was prepared late in the evening, the dead body was sent for post-mortem. 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 IPC and Basudev Paul was charged for offence under Section 212 IPC.

6. The prosecution examined thirty-one witnesses in support of its case; prosecution also produced documentary evidences, namely, statements recorded under Section 164 CrPC and certain other documentary evidences. The accused persons adduced no oral evidences. The accused were examined under Section 313 CrPC.

7. The learned Additional Sessions Judge acquitted accused Biswanath Paul for the offence under Section 212 IPC and all other accused from charge of Sections 302/34 IPC. The 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 16-2-2006 2006 SCC OnLine Cal 80, (2006) 1 Cal LJ 401 set aside the order of the acquittal as regards to Anjan Dasgupta and Biswanath Paul. It, however, confirmed the acquittal with regard to Sintu alias Saroj Roy and Bhola Kundu. The acquittal of Basudev Paul was also affirmed. Appellant Anjan Dasgupta was sentenced to undergo life imprisonment with a fine of Rs 2000. Anjan Dasgupta has filed this appeal challenging his conviction and sentence.

8. We have heard Shri Kapil Sibal, learned Senior Counsel appearing for the appellant, Shri Rupesh Kumar, learned Senior Counsel appearing for Respondent 2 and Parijat Sinha, learned counsel for the State of West Bengal.

9. Shri Kapil Sibal, learned Senior Counsel for the appellant, in support of the appeal contends that the 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 the 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 p.m, hence the FIR could not have been lodged before 7.30-8.00 p.m and mention of time of receiving the information in the FIR as 1735 hours clearly proves that it was ante-timed.

10. Shri Kapil Sibal further submits that the FIR, in fact was lodged after inquest report and inquest report according to the evidence was prepared after 2235 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 the trial court. He submits that the High Court committed an 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, the 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 22-7-2000, which also clearly proves that FIR was not registered at the time and the date when it is claimed. Mention of UD Case No. 43 of 2000, in FIR causes suspicion and serious doubts with regard to the authenticity of the FIR and subsequent inquest report. The prosecution failed to prove any motive for the murder and in absence of any motive, the appellant could not have been convicted.

11. The learned counsel appearing for the State as well as the complainant have refuted submissions of the learned counsel for the appellant. The 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, the trial court committed error in holding that the FIR is ante-timed and ante-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 IO. Further, although much argument was raised before the trial court regarding ante-timing and ante-dating of the FIR but no questions were put before the IO and the Sub-Inspector who recorded the FIR, when they appeared before the court.

12. 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 3 as “was the real FIR suppressed and the FIR proved as ante-dated”. The trial court had observed that PW 1 went to the police station at about 7.30/8.00 p.m but in the formal FIR Ext. 9, it is recorded that information of the commission of offence was received at 1735 hours on 16-6-2000. This entry in Ext. 9 contradicts the aforesaid evidence of PW 1 as regard to the time of lodging of complaint at the police station. Argument was raised before the trial court that the FIR was, not only ante-timed but also ante-dated, as such no reliance should be placed on Ext. 3. The Magistrate had perused both the written complaint and the FIR, which bore the endorsement “seen” dated 22-7-2000. The trial court held that the FIR was dispatched from the police station on 22-6-2000 and was received at the Magistrate Court on 23-6-2000.

13. The trial court had recorded its conclusion in following words at p. 107:

“As the FIR was ante-timed 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 the trial court at p. 106:

“Even if the FIR was lodged after 7.30/8 p.m as stated by PW 1 it would not lose its value in its 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.”

14. 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 p.m 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.

15. Shri Sunil Giri has proved the FIR, he further proved that he received the FIR on 16-6-2000, he proved his signature on the FIR also. He denied the suggestion that the FIR was written on subsequent to 16-6-2000. Thus there is no case of ante-dating the FIR, even the trial court did not accept the submission that the FIR was ante-dated.

16. 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 p.m The statement of PW 30, in this context, is very relevant. PW 30 in his statement has stated that on 16-6-2000, when he was posted at Police Station Naihati, he was at Village Shibdaspur, in connection with another case, when at 1715 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 1740 hours and remained there till 2105 hours. He further stated that he prepared the sketch map on the spot and seized certain articles including two bicycles from the entrance of the party office room. The statement in his examination-in-chief following was stated by IO:

“While I was at Village Shibdaspur under PS Naihati in connection with another case at 1715 hours. I received an RT message that at Mitra Bagan crossing one Debol Kumar Ghosh had been shot dead. I then directly rushed to Mitra Bagan more. I arrived there at 1740 hours. 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 Mitra Bagan crossing. I had been engaged with law and order maintaining job up to 2105 hours. I went to the CPI (M) party office at Mitra Bagan crossing and prepared a sketch map thereof with index.”

17. In the cross-examination, he has stated that ASI Sunil Giri had send him the RT message. Sunil Giri, ASI thus had received the information of the murder of Debol Kumar Ghosh before 1715 hours, arrival of Sub-Inspector Tapan Kumar Mishra, IO on the scene at the time as claimed is proved; IO also went to Green View Nursing Home, accompanied by SI Manick Chakraborty where the dead body of the deceased Debol Kumar Ghosh was laid. Under the dictation of the IO, the inquest report was prepared by Manick Chakraborty, Sub-Inspector of Police, which had started on 2235 hours. The inquest report which has been proved by witnesses and IO clearly records the following:

“Investigation report over the dead body of deceased Debol Kumar Ghosh, 48 years, son of late Kiran Chandra Ghosh, resident of 212/1, R.B.C Road, PS Naihati, District North 24 Parganas (illegible) in connection with Naihati PS UD Case No. 43 of 2000 dated 16-6-2000 and Naihati PS Case No. 99 of 16-6-2000 under Sections 302/34 IPC and Sections 25/27 of the Arms Act.”

18. The inquest report thus mentioned both unnatural death case (UD No. 43 of 2000) dated 16-6-2000 and PS Case No. 99 of 16-6-2000 under Sections 302/34 IPC and Sections 25/27 of the Arms Act. From the above, there can be no doubt that the FIR was registered before the inquest of dead body started. The evidence indicates that information of death was received by the police station before 1715 hours and the police officials arrived at the spot immediately and the IO arrived at the spot at 1745 hours, 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 was received, police was duty-bound to start the investigation.

19. This Court in Apren Joseph v. State of Kerala (1973) 3 SCC 114 stated the following in para 11:

“11. … As observed by the Privy Council in King Emperor v. Nazir Ahmad Khwaja 1944 SCC OnLine PC 29, (1943-44) 71 IA 203, the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation.”

20. Much emphasis has been laid down by the learned counsel for the appellant on the fact that, FIR notes in Column C, “time 1735”. The time 1735 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 1715 hours since he had sent the RT message to the IO. Information of cognizable offence having been received by the ASI, with regard to the mention of time at 1735 hours in the FIR, which was recorded after 1730 hours 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 of 1735 hours 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 the matter, the above in no manner diminishes the value or credibility of the FIR.

21. The information of murder was received before 1735 hours at the police station which is fully proved by arrival of the police officers much before 1740 hours as proved by the IO. Hence mention of the time at 1735 hours can be treated as the time of receipt of the information of the offence in the police station and there is no such inconsistency in the FIR so as to come to the conclusion that FIR was ante-timed.

22. The 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 p.m, registration of the FIR at the police station between 7.30 to 8.00 p.m 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. Another circumstance, which has been heavily relied upon by the trial court and reiterated before us by the learned counsel for the appellant is the 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 the court is not fatal in a case in which investigation has commenced promptly on its basis.

23. The IO after receipt of the information of an offence by RT message had arrived at the scene at 1740 hours, which clearly proves the prompt commencement of the investigation. The FIR was dispatched on 22-6-2000 which has also been accepted by the trial court. When no questions were put to IO 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 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.

24. The present is the case, where recording of the FIR on 16-6-2000 itself has been proved, accepted by the trial court also, thus mere dispatch of the FIR on 22-6-2000 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 the trial court committed an error in drawing adverse inference against the prosecution and refusing to attach value to the FIR.

25. The conclusion of the learned Sessions Judge that the FIR was manipulated is thus found to be erroneous. The 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.

26. Now, we come to the consideration of oral evidence by the Sessions Judge. Both the deceased and accused belong to the same locality. The occurrence was witnessed by several persons, including the eyewitnesses 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 (sic) Shankar Ghosh.

27. 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 4.50 p.m 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 the aforesaid party office from the side of Mitra Bagan by two bicycles. 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 shot 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 eyewitness account and could not be shaken.

28. 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 leaf. 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 Debol Ghosh. Thereafter, all left towards Gouripur.

29. 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 3.00 p.m to 4.00 p.m, 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.

30. The almost similar eyewitness account has been narrated by other eyewitnesses who were examined by prosecution.

31. The learned Sessions Judge pointing out certain discrepancy/contradiction in the statement held that the evidence by the eyewitnesses does not inspire confidence. The 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 CrPC was recorded with delay. The statement given by the eyewitness in the court cannot be discarded merely on the grounds that the statement which got recorded under Section 164 CrPC by the prosecution was not immediately recorded.

32. The cross-examination of IO PW 31 does not indicate that any explanation was asked from him regarding delayed recording of the statement under Section 164 CrPC.

33. The High Court has also reappraised the entire 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 p. 22: (Anjan Dasgupta case 2006 SCC OnLine Cal 80, (2006) 1 Cal LJ 401, SCC OnLine Cal para 60)

“60. We have carefully examined the statement of the witnesses and also their statement recorded under Section 164 CrPC 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 stuck to their earlier statements given before the IO and they made the same statement before the trial court during their examination.”

34. After looking to the evidence of the eyewitnesses, the High Court has observed that all of them had deposed of arrival of the 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: (Anjan Dasgupta case 2006 SCC OnLine Cal 80, (2006) 1 Cal LJ 401, SCC OnLine Cal para 57)

“57. 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 shoot at Debal Ghosh and subsequently for helping the persons to flee from the place of occurrence by getting inside the Maruti Gypsy vehicle.”

35. 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 discarded the evidence of PW 2 by giving following reasons:

“… In the statement recorded under Section 164 CrPC marked Ext. 1 this gentleman told that on hearing sound of firing he rushed and found that Debol 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 quick the pigs’. In the statement recorded under Section 164 CrPC 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 PW 2. PW 2's evidence being contradicted by his earlier belated statement under Section 164 CrPC as well as suffers from improbability cannot be relied on…”

36. The mere fact that the witness did not name the person whom he tried to catch does not lead to any contradiction since all the eyewitnesses have stated that four persons came by 2 bicycles one of whom shot Debol Ghosh.

37. 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 the learned Sessions Judge that the evidence suffers from the improbability and cannot be relied upon is also not based on any valid reason.

38. Some minor contradiction has been pointed out by the learned Sessions 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 recorded by the High Court: (Anjan Dasgupta case 2006 SCC OnLine Cal 80, (2006) 1 Cal LJ 401, SCC OnLine Cal para 63)

“63. 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 Debol 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.”

39. The 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 the accused have to be 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 of 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: (Anjan Dasgupta case 2006 SCC OnLine Cal 80, (2006) 1 Cal LJ 401, SCC OnLine Cal para 70)

“70. From scanning of the entire prosecution evidence and having regard to the 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 ante-dated and anti-timed and a manipulated one. The trial court also erred in law by discarding the FIR for delay in dispatching the same to the Court of the Magistrate.”

40. 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 the 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.