Sunday, 9 April 2017

When Delay in sending FIR to court is not fatal to prosecution case?

 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 4­5 PM, registration
of the FIR at the police station between 7.30 to 8.00
PM   does   not   cause   any   reason   to   draw   any   adverse
inference,   more   so,   when   after   the   occurrence,   the
deceased was taken to the nearby nursing home where
he was declared dead and body remained there till the
inquest   was   over.   The   another   circumstance,   which
have   been   heavily   relied   by   trial   court   and
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   cross­examination   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. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
    CRIMIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL NO. 298 OF 2006
ANJAN DASGUPTA
     V
THE STATE OF WEST BENGAL & ORS.
Dated: NOVEMBER 25, 2016.
Citation: 2017 CRLJ 529 SC

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 24­Paraganas at
which time a maruti gypsy car stopped, from which the
appellants got down. At the same time, four persons
on two bicycles came from the direction of the Mitra
Bagan   Road   and   stopped     right   in   front   of   CPI(M)
Party  Office. The appellant by hand indicated Debol
Kumar Ghosh to four persons who had arrived there on
two bicycles, and one of them fired from pipe gun on
Debol   Kumar   Ghosh.   Leaving   two   cycles,   all   four
persons   got   in   the   Maruti   Gypsi   which   speed   up
towards   Gauripur.     Sandip   Ghosh,   the   son   of   Debol
Kumar Ghosh who was sitting inside his medicine shop,
namely, “Ma Medical Stores” at R.B.C. Road, Naihati,
North   24­Parganas   situated   at   5   cubits   from   CPI(M)
Office saw the above incident and rushed to CPI(M)
Party Office and found his father Debol Kumar Ghosh
had sustained bullet injuries on his chest and was
lying   on   the   floor.     The   elder   brother   of   Sandip
Ghosh, upon hearing the sound, also came to the Party
Office.  The victim, Debol Kumar Ghosh was thereafter
taken   to   Green   View   Nursing   Home   where   he   was
declared dead by the doctors at 5.00 PM. 
3. The information of murder of Debol Kumar Ghosh
was received by the Police Officials of the Naihati
Police Station, who immediately rushed to the scene
of   occurrence.   After   receiving   an   R.T.   message   at
17.15   hours,   the   Sub   Inspector   Tapan   Kumar   also
arrived at the scene at 17.40 hrs and remained at the
scene   till   21.05   hours.     Sandip   Ghosh   went   to   the
police   station   at   about   7.30­8.00   PM   alongwith   one
Arun Dey.  Arun Dey wrote the complaint at dictation
of Sandip Ghosh and a written complaint was submitted
to the police station.   The FIR No. 99 of 2000 was
registered   under   Section   302/34   of   the   IPC   and
Section   25/27   Arms   Act,   naming   accused   Anjan
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 asPage 5
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regards to Anjan Dasgupta and Biswanath Paul.   It,
however, confirmed the acquittal with regard to the
Sintu alias Saroj Roy and Bhola Kundu.  Acquittal of
Basudev   Paul   was   also   affirmed.     Appellant   Anjan
Dasgupta was sentenced to undergo life imprisonment
with   a   fine   of   Rs.   2000.00/­.   Anjan   Dasgupta   has
filed   this   appeal   challenging   his   conviction   and
sentence.
7. We   have   heard   Shri   Kapil   Sibal   learned   senior
counsel   appearing   for   the   appellant,   Shri   Rupesh
Kumar   learned   senior   counsel   appearing   for   the
Respondent   No.   2   and   Parijat   Sinha   learned   counsel
for the State of West Bengal. 
8. Shri Kapil Sibal learned senior counsel for the
appellant,   in   support   of   the   appeal   contends   that
learned   Sessions   Judge   after   considering   entire
evidence on record had rightly come to the conclusion
that   evidence   led   by   prosecution     contradicts   the
prosecution story, as to the genesis of occurrence,
hence     did   not   commit   any   error   in   acquitting   the
appellant.   It   is   contended   that   FIR   was   ante­dated
and ante­timed as rightly held by the trial court.Page 6
6
He submitted that from the evidence of PW 1 who gave
the written complaint for lodging an FIR, it is clear
that   he   went   to   the   police   station   after   7.30   PM,
hence   the   FIR   could   not   have   been   lodged   before
7.30­8.00   PM   and   mention   of   time   of   receiving   the
information in the FIR as 17.35 hour clearly proves
that it was ante­timed. 
9. Shri   Kapil   Sibal   further   submits   that   FIR,   in
fact   was   lodged   after   inquest   report   and   inquest
report according to the evidence was prepared after
the 22.35 hours.   It is submitted that ante­timing
and ante­dating of the FIR was with object to falsely
implicate the accused since by that time prosecution
story   was   still   in   vacuum.   Shri   Sibal   referred   to
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   policePage 7
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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 ante­Page 8
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timed and anti­dated. The High Court after correctly
appreciating   the   entire   evidence   on   record   has
rightly reversed the acquittal order.  With regard to
the   delay     in   sending   the   copy   of   the   FIR   to   the
Magistrate,   nothing   was   asked   in   the
cross­examination of the I.O. Further, although much
argument was raised before the trial court regarding
ante­timing and ante­dating of FIR but no questions
were put before the I.O. and the sub inspector who
recorded   the   FIR,   when   they   appeared   before   the
court.
11. First, we proceed to consider the submissions of
the   learned   counsel   for   the   appellant   regarding
ante­timing and ante­dating of the FIR.   The trial
court had formulated point No. 3 as 'was the real FIR
suppressed and the FIR proved as ante­dated'. Trial
court   had   observed   that   PW   1   went   to   the   police
station at about 7.30/8.00 PM but in the formal FIR
Exh.   9,   it   is   recorded   that   information   of   the
commission of offence was received at 17.35 hours on
16th  June,   2000.     This   entry   in   Exh.   9   contradicts
the aforesaid evidence of the PW 1 as regard to thePage 9
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time of lodging of complaint to the police station.
Argument was raised before the trial court that FIR
was, not only ante­timed but also ante­dated, as such
no   reliance   should   be   placed   on   the   Exh.   3.
Magistrate had perused both the written complaint and
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
7­30/8 p.m. as stated by the P.W.1 it
would   not   lose   it's   value   in   it's
entirety because it is not established
that the FIR proved at the trial was a
subsequent one or that it was writtenPage 10
10
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 ante­dating
the   FIR,   even   the   trial   court   did   not   accept   the
submission that FIR was ante­dated. 
14. Now   we   come   to   the   main   submissions,   that   is,
ante­timing of the FIR and delayed dispatch of the
FIR to the court of the Magistrate.  The sequence ofPage 11
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the events, as it emerges from the evidence brought
before the court, i.e. the  evidence of PW 1 and PW
30, there is no doubt that PW 1 went to the police
station at about 7.30 PM. The statement of PW 30, in
this   context,   is   very   relevant.     PW   30   in   his
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  examination­in­chief  following
was stated by I.O.:
“While   I   was   at   village
Shibdaspur   under   P.   S.   Naihaati   in
connection   with   another   case   at
17.15hrs. I received an R. T. message
that at Mitrabagan crossing one Debal
Kr. Ghosh had been shot dead. I then
directly rushed to Mitrabagan More. I
arrived   there   at   17­40   hrs.     There
was   law   and   order   problem   over   the
murder.   There was blockage of road.
I   received   the   FIR   from   the   Police
Station   at   the   said   Mitrabagan
crossing.     I   had   been   engaged   with
law   and   order   maintaing   job   upto
21.05   hrs.   I   went   to   the   C.P.I.M
party   office   at   Mitrabagan   crossing
and   prepared   a   sketch   map   thereof
with index.”
15. In the cross­examination, he has stated that ASI
Sunil Giri had send him the R.T. message.  Sunil Giri
ASI thus had received the information of the murder
of Debol Kumar Ghosh before 17.15 hours, arrival of
Sub Inspector Tapan Kumar Mishra I.O. on the scene at
the time as claimed is proved; I.O. also went to the
Green View Nursing Home, accompanied by S.I. Manick
Chakraborty   where   dead   body   of   the   deceased,   Debol
Kumar   Ghosh   was   laid.   Under   the   dictation   of   the
I.O.,   the   inquest   report   was   prepared   by   Manick
Chakraborty   Sub   Inspector   of   Police,   which   has
started on 22.35 hours. The inquest report which has
been proved by witnesses and I.O. clearly records the
following:
"Investigation   report   over   the   dead
body   of   Deceased   Debol   Kumar   Ghosh
(48) years son of late Kiran Chandra
Ghosh   of   212/1   R.B.C.   Road   P.S.
Naihati   District   North   24­Paraganas
(Illegible)in   C/W   Naihati   P.S.   U.D.Page 13
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Case   No.   43/2000   dt.   16.62000   and
Naihati P.S. Case No. 99 of 16.6.2000
under   Section   302/34   I.P.C.   &   25/27
Arms Act.”
16. The inquest report thus mentioned both unnatural
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 CouncilPage 14
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in K. E. v. Khwaja, the receipt and
recording   of   information   report   by
the   police   is   not   a   condition
precedent to the setting in motion of
a criminal investigation.”
17. Much emphasis has been laid down by the learned
counsel   for   the   appellant   on   the   fact     that,   FIR
notes   in   Column   C,   'time   17.35'.   The   time   17.35
hours,   we   have   already   noted   that   Sunil   Giri   Sub
Inspector   of   Police   has   recorded   in   the   First
Information   Report.   He   had   already   received   the
information before 17.15 hours since he had sent the
R.T.   message   to   the   I.O.   Information   of   cognizable
offence having been received by the ASI, with regard
to the mention of time at 17.35 in the FIR, which was
recorded after 17.30 PM could have been explained if
any questions were put to ASI Sunil Giri. From the
cross­examination   of   ASI   Sunil   Giri,   it   does   not
appear   that   any   question   was   asked   regarding   the
recording   time   17.35   in   the   FIR.     The   possibility
cannot be ruled out that while registering the FIR on
the basis of written complaint, the ASI recorded the
time when he received the information in the police
station   of   the   death   of   Debol   Kumar   Ghosh.   In   any
view of matter, the above in no manner diminishes the
value or credibility of the FIR.
18. The   information   of   murder   was   received   before
17.35   hours   at   the   police   station   which   is   fully
proved by arrival of the police officers much before
17.40 hours as proved by I.O. Hence mention of the
time at 17.35 can be treated as the time of receipt
of   the   information   of   the   offence   in   the   police
station and there is no such inconsistencies in the
FIR   so   as   to   come   to   the   conclusion   that   FIR   was
ante­timed. 
19. FIR as well as the inquest report both mentioned
the accused Anjan Dasgupta.   The inquest report has
not   been   questioned   on   any   account.   The   offence,
having been committed at around 4­5 PM, registration
of the FIR at the police station between 7.30 to 8.00
PM   does   not   cause   any   reason   to   draw   any   adverse
inference,   more   so,   when   after   the   occurrence,   the
deceased was taken to the nearby nursing home where
he was declared dead and body remained there till the
inquest   was   over.   The   another   circumstance,   which
have   been   heavily   relied   by   trial   court   and
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   cross­examination   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   eye­witnesses   whoPage 18
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appeared   before   the   court   and   proved   the   prosecution
case,   PW.1   Sandip   Ghosh,   PW.2   Vijay   Das,   PW.3   Kamal
Nath,  PW.4  Manabendra  Nag,  PW.6  Prasanta   Ghosh,  PW.10
Shashanka Nath and PW 1 Shankar Ghosh.
24. PW.1 Sandip Ghosh, the son of the deceased was in
his medical shop “Maa Medical Stores” which is at the
distance of about 5 cubits from CPI(M) office. In his
eye­witness account, he stated that at 04:50 PM when he
was   at   his   shop,   he   found   a   motor   vehicle,   a   Maruti
Gypsy   to   come   from   side   of   Naihati   Station   and   got
itself   parked  on  R.B.C.  Road  after  crossing  Mitrapara
and   R.B.C.   Road   Crossing.   He   saw   Biswanath   Paul   and
Anjan Dasgupta got down from the said motor vehicle and
at   that   very   moment,   four   boys   about   age   22/23   years
came   in   front   of   aforesaid   party   office   from   side   of
Mitra   Bagan   by   two   Bicycle.   He   further   saw   Anjan
Dasgupta   and   Biswanath   Paul     to   point   out   his   father
sitting inside the party office. One of the said boys
took   out   a   pipe   gun   and   shoot   Debol   Ghosh.   Anjan
Dasgupta   further   observed   that   “Hay   Gechi   Tara   Tari
Chale Aiy”. Thereafter, the said vehicle left. In the
cross­examination, the witness stood firm with his eye­Page 19
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witness accound and could not be shaken. 
25. PW 2 Vijay Das on the fateful day was standing at
the   gate   of   the   party   office   inside   of   which   Debol
Ghosh   was   sitting.   Debol   Ghosh   after   taking   the   tea
asked   him   to   bring   the   beetle   leave.   He   went   to   the
beetle   shop   in   front     of   the   party's   office   on   the
other   side   of   road,   where   he   saw   Anjan   Dasgupta   and
Biswanath   Paul   to   get   down   from   Maruti   Gypsy   at   the
crossing of R.B.C. Road. At that time  four persons by
two bicycles came from the Mitrapara side. One of the
said   four   boys   brought   a   shooter   machine   and   fired
Debal Ghosh. Thereafter, all left towards Gouripur.
26. PW 3 Kamal Nath, who has a shop on the footpath in
front   of   the   CPI(M)   party   office,   stated   in   his
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 firedPage 20
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from   outside   the   party   office   and   shot   Debol   Ghosh.
They   left   the   bicycles   and   left   the   place   by   Gypsy
towards Gouripur.
27. The   almost   similar   eye­witness   account   has   been
narrated   by   other   eye­witness   who   were   examined   by
Prosecution.
28. Learned   Sessions   Judge   pointing   out   certain
discrepancy/contradiction   in   the   statement   held   that
the   evidence   by   eye­witnesses   does   not   inspire
confidence.   Learned   Sessions   Judge   had   also   made
observation that no explanation had been offered by the
prosecution   as   to   why   statement   of   witnesses   under
Section   164   Cr.   P.C.   was   recorded   with   delay.   The
statement given by the eye­witness in the court cannot
be discarded merely on the grounds that statement which
got   recorded   under   Section   164   Cr.P.C.     by   the
prosecution was not immediately recorded. 
29. The   cross­examination   of   I.O.   PW.31   does   not
indicates that the any explanation was asked from him
regarding   delayed   recording   of   the   statement   under
Section 164 Cr.P.C.
30. The   High   Court   has   also   re­appraised   the   entirePage 21
21
oral evidence and had observed that eye­witnesses stick
to their earlier statements except one or two witnesses
who  attempted  to  add   something   during  the  statements.
Following had been recorded by the High Court at Page
22:
“...We   have   carefully   examined   the
statement   of   the   witnesses   and   also
their   statement   recorded   under
Section 164 Cr.P.C. and we find that
there was attempt on the part of one
or   two   witnesses   to   add   something
more   during   their   statement   recorded
before   the   learned   Magistrate,   but,
as   a   whole   all   the   eye­witnesses
sticked   to   their   earlier   statements
given   before   the   I.O.   and   they   made
the   same   statement   before   the   trial
Court during their examination...”
31. After   looking   to   the   evidence   of   eye­witnesses,
High Court has observed that all of them had deposed of
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,Page 22
22
PW.2,   PW.3,   PW.4,   PW.6,   PW.10   and
also  from  PW.21  we  find  that   all  of
them   deposed   about   arrival   of   a
maruti   gypsy   vehicle,   presence   of
Anjan Dasgupta and Biswanath Paul on
the   place   of   occurrence   and   also
about   giving   of   instruction   to   shot
at   Debal   Ghosh   and   subsequently   for
helping the persons to flee from the
place of occurrence by getting inside
the maruti gypsy vehicle...” 
32. The appreciation of evidence of eye­witnesses and
discarding   the   aforesaid   evidences   by   the   learned
Sessions   Judge   was   on   flimsy   ground   and  based   on
surmises   and   conjectures  which   has   been   correctly
re­appreciated   by   the   High   Court.   For   instance,   with
regard to eye­witness PW 2 Vijay Das, learned Sessions
Judge discard the evidence of PW 2 by giving following
reasons:
“...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.Page 23
23
The PW2's evidence being contradicted
by   his   earlier   belated   statement
under   Section   164   Cr.P.C   as   well   as
suffers   from   improbability   cannot   be
relied on...”
33. The   mere   fact   that   the   witness   did   not   name   the
person   whom   he   tried   to   catch   does   not   lead   to   any
contradiction   since   all   eye­witness   have   stated   that
four persons came by 2 bicycles one of whom shoot Debol
Ghosh.
34. PW 2 stated that he tried to catch one person of
the aforesaid and omission not to name the person does
not   lead   to   any   contradiction   nor   can   result   in
discarding   the   evidence.   The   observation   of   learned
Sessions   Judge   that   the   evidence   suffers   from   the
improbability and cannot be relied is also not based on
any valid reason.
35. Some   minor   contradiction   has   been   pointed   out   by
learned   Session   Judge   in   the   evidence   of   other
eye­witnesses which have rightly been discarded by the
High Court and the High Court after re­appreciating the
evidence   has   rightly   come   to   the   conclusion   that   the
occurrence as well as participation of Anjan Dasgupta,
the appellant was proved. Following conclusion has beenPage 24
24
recorded by the High Court:
“...Thus from the evidence on record
we get that several witnesses of the
locality   who   were   present   on   the
place of occurrence had noticed Anjan
Dasgupta   and   Biswanath   Paul   on   the
place of occurrence and also noticed
their   active   participation   in   the
matter   of   murder   of   Debal   Ghosh   and
in   this   context   we   want   to   record
that the learned trial Court totally
misdirected   itself   in   the   matter   of
appreciation   of   the   evidence   of   the
eye­witness.”
36. High   Court   was   conscious   that   the   case   where
acquittal  has  been   made,   while   entertaining  an   appeal
over an order of acquittal if two views are possible on
making    proper   appreciation  of   available   evidence  the
view   going   in   favour   of   accused   have   to   given
importance.   It   is   well   settled   that   in   case   where   an
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.

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