Subrata Mukherjee vs State Of West Bengal & Anr

Tirthankar Ghosh, J

The revisional application has been preferred against the judgment and order dated 23rd December, 2005 passed by the Ld. Additional Sessions Judge, Ist Court, Bankura in Sessions Trial No. 2(7) of 2003 corresponding to Sessions Case No. 35(9) of 2002 under Section 306 of the Indian Penal Code (hereinafter referred to as IPC) read with Sections 25/27 of the Arms Act, wherein the learned Court was pleased to acquit the accused person from the charges levelled against him.

The prosecution case in short is that, one Subrata Mukherjee addressed a written complaint to the Officer-in-Charge, Saltora Police Station on 21st April, 1999 contending that at about 11 pm in the night one Tapan Majhi (accused) entered into the house of one Bipan Mukherjee, when Tapan Mukherjee and others shouted "chor chor" and hearing such hue and cry, the defacto complainant came out from his house and caught hold of Tapan Majhi. On search of the accused one improvised pipe gun and one cartridge was recovered from the possession of Tapan Majhi. However, the accused person escaped and fled away. The matter was thereafter reported to the elder brother of the defacto complainant and as such a written complaint was addressed to the local police station, pursuant to which Saltora Police Station Case No. 19/99 dated 22nd April, 1999 under Section 448 of the IPC and Sections 25/27 of the Arms Act was registered for investigation against the accused person.

In course of investigation a prayer was advanced by the Investigation Agency for adding Section 306 of IPC and the Ld. Magistrate was pleased to allow such prayer and accordingly investigation of the case was also carried out under the said section. On completion of investigation, the Investigation Officer of the case submitted chargesheet under Sections 448/306 of IPC and Sections 25/27 of the Arms Act.

The case was thereafter committed to the Court of Sessions and the Ld. Trial Court after consideration of the materials on record was pleased to frame charges under Section 306 of IPC and Sections 25/27 of the Arms Act. The charge was thereafter read over to the accused person who pleaded not guilty and claimed to be tried. The prosecution in order to prove its case relied upon 18 witnesses being PW1, Subrata Mukherjee - complainant; PW2, Dayamoy Mukherjee - brother-in-law of the victim; PW3, Tapan Mukherjee - brother-in- law; PW4, Mukta Mukherjee - sister-in-law/wife of PW3; PW5, Bipan Kumar Mukherjee - bus conductor; PW6, Swapan Kr. Mukherjee; PW7, Dr. J.N. Dey - post mortem doctor; PW8, Bhakti Banerjee - father of the victim; PW9, Susil Ganguli; PW10, Shibdas Majhi - Constable, Saltora P.S.; PW11, Maniklal Chatterjee - Constable, Saltora P.S.; PW12, Kalipada Majhi; PW13, Bhabendranath Mallick - Officer-in-Charge, Saltora P.S.; PW14, Ardhendu S. Patra - Officer-in-Charge, Saltora P.S.; PW15, Dilip Kr. Chowdhry - District Magistrate; PW16, Achintya Banerjee - expert who examined arms; PW17, Omar Ali Mallick - ASI, Bankura P.S. and PW18, Nouser Ali Khan - OC of Saltora P.S. On completion of the prosecution evidence, the Ld. Court examined the accused person under Section 313 of CrPC and thereafter invited him to tender witnesses to rebut the prosecution case. However, the defence did not examine any witness and the specific defence case as it appeared from the cross-examination of the prosecution witnesses and examination of the accused i.e. Tapan Majhi is that the accused was brutally assaulted by the defacto complainant and in order to avoid such responsibility and taking advantage of the suicide committed by Chandana Mukherjee, the defacto complainant manufactured this case against the accused to harass him.

The Ld. Court after appreciating the evidence adduced by the prosecution and after relying upon the documents so tendered in support of its case being written complaint (Ext.1), signatures of PW1 & PW2 over written complaint (Exts. 1/1 & 1/2), endorsement of SI NA Khan over written complaint (Ext. 1/3), signature of witnesses on seizure list (Exts. 2, 2/1, 2/2, 2/3, 5 & 5/1), seizure list (Ext.2/4), signature of witnesses on inquest report (Exts. 3, 3/1 & 3/2), inquest report (Ext. 3/3), post mortem report (Ext.4), signature of witnesses on dead body challan (Ext.6), dead body challan (Ext. 6/1), sanction order of DM, Bankura (Ext.7), report of arms expert (Ext.8), formal FIR (Ext.9) and sketch map of PO (Ext.10) analyzed the facts after pointing out the anomalies.

According to the Ld. Court, PW4, Mukta Mukherjee, wife of PW3 stated in her evidence that he did not find any pistal or cartridge in the hands of accused Tapan Majhi but she heard such fact from others. The Ld. Trial Court also pointed out the improbability in the version of the prosecution witnesses and observed that PW2 stated in his examination-in-chief that one cartridge was found in the courtyard which is not in tune with the background of the scenario existing, in view of the incident which has been described at the relevant time, that the accused person was severely assaulted and in presence of many villagers and witnesses, he fled away on the following morning. The Ld. Court also disbelieved the seizures in respect of the cartridge in view of the fact that nowhere in the seizure list, it has been stated that such article was recovered from the possession of the accused, Tapan Majhi. Finally, the Ld. Trial Court observed that the recovery of the fire arm from the possession of Tapan Majhi appears to be doubtful, as one of the principal witnesses refused to admit the recovery of such article from the accused, further the article was not in working condition and from the seizure list it reflects that the fire arm and the cartridge were recovered from the boundary of the house of PW5, Bipan Mukherjee. According to the Ld. Trial Court the District Magistrate did not apply his mind while granting sanction and as such the same is not valid in the eye of law and for the said reason the charges under Sections 25/27 of the Arms Act must fail.

So far as the charge of Section 306 of the IPC is concerned, the Ld. Court proceeded to observe that the accused has been implicated with the allegation that he had entered into the room of one Chandana Mukherjee in order to commit rape upon her, as he was caught red-handed by other inmates of the house, Chandana Mukheerjee committed suicide and thereby the accused abetted the commission of suicide by Chandana Mukherjee.

According to the Ld. Trial Court the occurrence took place at about 11 pm on 21st April, 1999 and the FIR was lodged on 22nd April, 1999 at 12pm, PW2 and PW3 went to Asansol to report to elder brother of Bipan Mukherjee about the occurrence and thereafter all the three persons went to police station and narrated the incident. PW3 has stated that he informed about the death of Chandana Mukherjee but police came to know abouth the death while visiting their house. The Ld. Court thereafter categorically recorded that there is no whisper in the FIR that Tapan Majhi had actually entered into the room of Chandana Mukherjee for committing rape on her. The further observation of the Ld. Court to the effect that all the witnesses stated about the illicit relationship between Tapan Majhi and Chandana Mukherjee before the police officer, but they denied such relationship while being cross-examined by the defence. The Ld. Trial Court thereafter came to the conclusion that a relationship could have existed between Chandana Mukherjee and Tapan Majhi but the reason for committing suicide of Chandana Mukherjee cannot be attributed to the accused Tapan Majhi entering her room.

One of the basic principles which are to be followed while dealing with a revisional application against an order of acquittal is that until and unless there are glaring illegality in the procedure or manifest error on the face of the records which has resulted in an abuse of the process of the Court and has occasioned in miscarriage of justice, this Court is not empowered to interfere with the same.

In Antar Singh vs. State of Madhya Pradesh reported in 1979 (1) SCC 79, it has been held that where two views of the evidence are reasonably possible and the Ld. Trial Court has opted for one favouring acquittal, the High Court should not disturb the same merely on the ground that if it were in the position of the Trial Court, it would have taken the alternative view and convicted the accused.

I have taken into account the manner in which the Ld. Trial Court has assessed the evidence, scrutinized the same and thereafter recorded the contradictions appearing in evidence. The Ld. Trial Court on the basis of such contradictions arrived at its findings that the charges under Sections 25/27 of the Arms Act as well as the charge under Section 306 of IPC was not sustainable. I find that the reasons so assigned by the Ld. Trial Court are logical and cogent and the same do not call for any interference.

CRR 873 of 2006, is accordingly dismissed, and the judgment and order dated 23rd December, 2005 passed by the Ld. Additional Sessions Judge, 1st Court, Bankura in Sessions Trial No. 2(7) of 2003 is hereby affirmed.

The Department is directed to communicate the order to the Ld. Court below.

The Lower Court Records be sent down to the Court below immediately. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.