SURJIT SARKAR Vs STATE OF WEST BENGAL
Bench: SWATANTER KUMAR,MADAN B. LOKUR
Case number: Crl.A. No.-002026-002026 / 2009
Diary number: 18188 / 2009
Advocates: RAUF RAHIM Vs
ABHIJIT SENGUPTA
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2026 OF 2009
Surajit Sarkar …..Appellant
Versus
State of West Bengal …..Respondent
J U D G M E N T
Madan B. Lokur, J.
1. The principal issues before us are whether a cryptic
telephonic intimation given to the police can be described
as a First Information Report for the purposes of Section
154 of the Criminal Procedure; whether the testimony of
PW-7 Sanatan Sarkar and PW-8 Achintya Sarkar can be
accepted for upholding the conviction of Surajit Sarkar
(the appellant); whether Surajit Sarkar can be convicted
of murder even though his co-accused have been
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acquitted and finally whether Surajit Sarkar did commit
the murder of Gour Chandra Sarkar.
2. In our view, the first issue must be answered in the
negative. We also hold that the testimony of PW-7
Sanatan Sarkar cannot be accepted, but we do accept the
testimony of PW-8 Achintya Sarkar. We find no reason to
hold that merely because those accused with Surajit
Sarkar have been acquitted, he too must be acquitted of
the charge against him. However, we find, on the
testimony of PW-8 Achintya Sarkar, that Surajit Sarkar is
liable to be punished not for the murder of Gour Chandra
Sarkar but for culpable homicide not amounting to
murder punishable under Section 304 of the Indian Penal
Code.
The facts:
3. On 21st March 1995, Susanta Sarkar’s father Gour
Chandra Sarkar had gone on his cycle to the Gobindapur
bazaar in the evening. At about 9.00 pm while he
(Susanta Sarkar) was in his house, he heard a cry from
his mother. On inquiring from her, he learnt that Bishnu
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Sarkar informed her that Gour Chandra Sarkar had been
murdered at about 8/8.30 pm apparently in front of
Bimal Poddar’s house.
4. Susanta Sarkar immediately rushed to the spot and
found his father lying senseless on the ground with
bloody injuries. On raising a noise, some villagers
gathered there and advised him to lodge a complaint.
Thereafter, he went to his uncle’s house (Bishnu Sarkar’s
father) and wrote out a complaint.
5. Later, he came to know at about 10/10.30 pm that the
police had reached the place of occurrence. Thereupon,
he too went to the place of occurrence and met the police.
In his presence, the police seized some items, including
his father’s wrist watch and cycle. After the seizure
proceedings were over at about 11.55 pm he handed over
to the police his complaint addressed to the officer-in-
charge Police Station Santipur, District Nadia.
6. In his complaint, Susanta Sarkar stated the broad
facts mentioned above, namely, that his father had gone
to the Gobindapur bazaar in the evening; that he came to
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know his father had been murdered at about 8.30/9.00
pm in front of Bimal Poddar’s house; that he went to the
place of occurrence and found his father lying on the road
with a bleeding injury.
7. He also stated in his complaint that there was a
dispute between the members of his family and that of
Gour Sarkar and some people engaged by him. On 8th
March 1995 there was a scuffle between the two parties
and a case was pending in that regard. His brother Nimai
Sarkar was in jail as a result of that incident. Gour
Sarkar’s party had also been in jail but had been released
a day or two earlier. Susanta Sarkar stated in his
complaint that he firmly believed that six members of
Gour Sarkar’s party murdered his father Gour Chandra
Sarkar due to the grudge that they bore.
8. Based on the complaint given by Susanta Sarkar, a
First Information Report (FIR) was registered in Police
Station Santipur, District Nadia on 22nd March 1995 at
about 00.45 am and formal investigations commenced
into offences punishable under Section 302 read with
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Section 34 and Section 120-B of the Indian Penal Code
(for short the IPC) against the six accused persons. On
conclusion of the investigations, a charge sheet was filed
against them. Charges were framed against the accused
persons but they pleaded not guilty and claimed trial.
9. Although the prosecution produced fourteen
witnesses, we are concerned with the evidence of only
some of them.
10. PW-1 Susanta Sarkar confirmed what he had
stated in his complaint. He added that his younger
brother Achintya Sarkar (aged about 12/13 years when
the incident took place) returned home that night at
about 2/2.30 am and informed the witness that Surajit
Sarkar, Adhir Sarkar and Sukumar Sarkar had killed
Gour Chandra Sarkar. When Achintya Sarkar opposed
them, Bara Gopal Sarkar, Jamai Gopal Sarkar and
Bhebesh Sarkar chased him and so he fled away. (These
were the same persons named by Susanta Sarkar in his
complaint). In his cross-examination, Susanta Sarkar
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stated that he did not ask Achintya Sarkar where he was
till 2.30 am.
11. PW-2 Bishnu Sarkar stated that he had gone to
the Gobindapur market that evening. When he was
returning home, he saw 5/6 persons near the primary
school. He could identify Surajit Sarkar in the torchlight.
When he proceeded further, he saw Gour Chandra Sarkar
lying senseless on the road with injuries on his chest,
head and hand etc. He immediately went and narrated
what he saw to Gour Chandra Sarkar’s wife. Although
this witness turned hostile, he stated that he was present
when the inquest and seizure of articles took place later
that night.
12. PW-3 Parash Biswas was a panchayat member of
Gobindapur village. He was in a meeting when he learnt
of the murder of Gour Chandra Sarkar. He went to the
place of occurrence and saw the dead body. Thereafter,
he telephonically informed the police station of the
incident but did nothing further. From the deposition of
PW-11 Krishnapada Mazumdar of Police Station
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Santipur, it appears that the telephone call was made
around 9.35 pm when a General Diary entry was made by
him to the effect that an unknown person gave
information about the murder of an unknown person at
Arpara, Police Station Santipur, District Nadia.
13. PW-7 Sanatan Sarkar was a neighbor of Gour
Chandra Sarkar and an eyewitness to his murder. He
testified that he was returning from Gobindapur to
Arpara with Achintya Sarkar and Gour Chandra Sarkar
at about 8.30 pm on 21st March 1995. On the way, near a
primary school, 5/6 persons surrounded Gour Chandra
Sarkar. He saw Surajit Sarkar from the light of his torch
assaulting Gour Chandra Sarkar with a rod. He also
identified Adhir Sarkar and Sukumar Sarkar at the place
of occurrence and said that they chased him (Gour
Chandra Sarkar). He did not say that Adhir Sarkar and
Sukumar Sarkar assaulted Gour Chandra Sarkar and he
did not identify anybody else at the place of occurrence.
The witness said that he escaped from the place of
occurrence and went home. He came to know the next
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morning that Gour Chandra Sarkar had died. It
transpires from the evidence of the investigating officer
PW-14 Pradyut Banerjee that even though Sanatan
Sarkar was an eyewitness, he was examined only on 10th
May 1995 about a month and an half after the incident.
14. PW-8 Achintya Sarkar, son of Gour Chandra
Sarkar was also an eyewitness. He was about 12/13
years old when the incident took place. In his testimony
he stated that he, his father and Sanatan Sarkar were
returning to their village from Gobindapur at about
8/8.30 pm on 21st March 1995. When they were near a
school, he saw from his torchlight that Surajit Sarkar was
assaulting his father with a rod. Then Sukumar Sarkar
followed by Adhir Sarkar assaulted his father with a rod.
He tried to go to his father but was chased away by Gopal
Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar. He was
afraid that they might kill him. He stated that he returned
home that night at about 2.00 pm. When the police came
to his house thereafter, he narrated the incident to them.
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15. PW-9 Dr. Partha Sarathi Saha confirmed the
injuries on Gour Chandra Sarkar and stated that a hard,
blunt weapon could have caused them. The injuries were:
(1)1½” cut mark over the right front parietal region.
(2) ½” cut mark over the back of right parietal region.
16. There were some abrasion marks over the right
ear and right knee. He also found that the right parietal
bone was fractured. The membrane and brain matter
were ruptured. There was a fracture of the right 6th & 7th
ribs and a fracture of the lower end of right radius and
dislocation of the right elbow joint. In his cross
examination this witness stated that injury (1) and (2)
above may be caused by contact with a hard and blunt
weapon and even by a fall.
17. PW-14 Pradyut Banerjee the investigating officer
confirmed the events as investigated by him. He also
confirmed the seizures made and generally supported the
case of the prosecution. In his cross-examination, he
stated that he examined Achintya Sarkar at his residence
at about 2.10 am on 22nd March 1995. At that time,
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Achintya Sarkar did not say that he was chased away by
Gopal Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar.
He had stated that Surajit Sarkar assaulted his father.
Decision of the Trial Court:
18. The principal contention of the defence before the
Trial Court was that the telephonic intimation given by
PW-3 Parash Biswas must be treated as the FIR for the
purposes of Section 154 of the Criminal Procedure Code
(for short the Cr.P.C.). Consequently, the complaint
lodged by PW-1 Susanta Sarkar would not be the FIR and
the contents thereof would be hit by Section 162 of the
Cr.P.C.
19. The Trial Judge rejected this contention holding
that the ingredients of Section 154 of the Cr.P.C. were not
made out and that the telephonic message given by an
unknown person with regard to the death of another
unknown person could not be treated as an FIR. In
arriving at this conclusion the Trial Judge relied on
Ramsinh Bavaji Jadeja v. State of Gujarat, (1994) 2
SCC 685.
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20. On the merits of the prosecution case, the Trial
Court was of the view that even though some of the
witnesses were interested witnesses and had some
enmity with the accused persons, their evidence could
not be thrown out only for this reason. It was held that
there was no dispute about the time and place of the
incident. There was also no dispute that Gour Chandra
Sarkar had met a homicidal death. The only question
that remained under these circumstances was who had
killed Gour Chandra Sarkar.
21. The Trial Judge held that there was insufficient
evidence to implicate Bara Gopal Sarkar, Jamai Gopal
Sarkar and Bhebesh Sarkar with the incident. They were
not identified by PW-7 Sanatan Sarkar and even
according to the testimony of PW-8 Achintya Sarkar they
had not dealt any blows on Gour Chandra Sarkar and
had only chased him away from the scene of the crime.
Accordingly, the Trial Judge acquitted Bara Gopal Sarkar,
Jamai Gopal Sarkar and Bhebesh Sarkar.
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22. With regard to two other accused persons,
namely, Sukumar Sarkar and Adhir Sarkar, the Trial
Court held that even though PW-8 Achintya Sarkar had
stated in his evidence that they had dealt blows on Gour
Chandra Sarkar yet, since during the investigations, PW-
8 Achintya Sarkar had informed the investigating officer
that he saw only Surajit Sarkar giving blows to Gour
Chandra Sarkar, the Trial Judge gave them the benefit of
doubt and accordingly acquitted them.
23. The Trial Judge was of the view that there was
sufficient evidence that Surajit Sarkar had assaulted
Gour Chandra Sarkar with an iron rod and had caused
severe injuries on his head. It was held that the
prosecution had successfully proved beyond all
reasonable doubt that Surajit Sarkar had murdered Gour
Chandra Sarkar. Accordingly, he was held punishable for
the offence of murder and sentenced to life imprisonment.
Decision of the High Court:
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24. The State did not appeal against the acquittal of
the five accused persons. However, Surajit Sarkar filed
C.R.A. No. 17 of 1998 which was heard by the Calcutta
High Court. By its judgment and order dated 24th April
2009, the High Court upheld the conviction of Surajit
Sarkar and the sentence awarded to him.
25. Before the High Court, it was submitted that the
complaint made by PW-1 Susanta Sarkar could not be
treated as an FIR. This contention was rejected by the
High Court holding that the telephonic message received
from an unknown person in respect of the murder of
another unknown person was cryptic and anonymous
and the ingredients of Section 154 of the Cr.P.C. were not
made out. As such, it could not be treated as an FIR. The
High Court relied on Tapinder Singh v. State of
Punjab, (1970) 2 SCC 113, Soma Bhai v. State of
Gujarat, (1975) 4 SCC 257 and Ramsinh Bavaji
Jadeja.
26. The second contention before the High Court was
that the prosecution witnesses were interested witnesses
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and therefore their evidence was not credible. The High
Court considered this contention and rejected it on the
ground that there was no contradiction in the statements
of the witnesses.
27. The next contention before the High Court was
that there was an infirmity in the FIR since important
facts affecting the probability of the case had been left
out. The High Court rejected this contention and held
that an FIR is not an encyclopedia of the events said to
have taken place. The FIR only results in setting the
investigative process in motion and in this case the
investigation was carried out satisfactorily. The failure of
the complainant to mention from whom he got the
information regarding the murder of Gour Chandra
Sarkar was not material.
28. It was argued before the High Court that the
investigation was shoddy inasmuch as the investigating
officer did not seize the torches from which the
eyewitnesses had seen the crime. The High Court held
that this could not be treated as an omission to discredit
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the witnesses. For this purpose, reliance was placed on
Balo Jadav v. State of Bihar, (1997) 5 SCC 360.
29. Continuing with the argument of a shoddy
investigation, it was contended that there was
considerable delay in the examination of an eyewitness
(PW-7 Sanatan Sarkar). The High Court held that since
no question was asked of the investigating officer
regarding the delay in examination of the witness, the
investigation cannot be faulted on this ground. It was
held that if asked, the investigating officer could have
given an explanation which might have been acceptable.
Reliance in this regard was placed on Ranbir and Ors. v.
State of Punjab, (1973) 2 SCC 444 and Bodhraj v.
State of J & K, (2002) 8 SCC 45.
30. The last contention urged before the High Court
was that since the co-accused had been acquitted after
having been given the benefit of doubt, it would not be
correct to hold Surajit Sarkar guilty of the offence of
murder. This contention was also rejected in view of
Komal v. State of U.P., (2002) 7 SCC 82 and
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Gangadhar Behera v. State of Orissa, (2002) 8 SCC
381.
Contentions:
31. Before us, it was contended that the telephonic
message received by the Police Station at Santipur and
which was noted in the General Diary should be treated
as the FIR and not the complaint made by PW-1 Susanta
Sarkar.
32. The second contention was that the presence of
PW-7 Sanatan Sarkar and indeed of PW-8 Achintya
Sarkar at the place of occurrence was doubtful. In this
context, it was pointed out that PW-8 Achintya Sarkar did
not mention the presence of PW-7 Sanatan Sarkar at the
place of occurrence. As far as PW-8 Achintya Sarkar is
concerned, he was not traceable till 2.00 am the next day
which by itself casts a doubt on his whereabouts.
Moreover, this witness stated that he returned home at
2.00 am on 22nd March 1995 but in his cross-
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examination he stated that after he fled from the place of
occurrence he returned to the same place and saw his
father lying dead with bloody injuries. In view of this
contradiction, this witness could not be believed.
33. The third contention urged was that the
prosecution case looks a little doubtful inasmuch as PW-
8 Achintya Sarkar, a boy of 12/13 years did not reach
home on the fateful evening till 2.00 am the next day and
yet there was no complaint by anybody in the family
about the missing child. This was said to be a little odd,
and particularly since his father had been murdered, his
family ought to have been a little worried about his safety
and ought to have made a complaint to the police in this
regard. It was submitted that this conduct of Gour
Chandra Sarkar’s family was inexplicable.
34. The final contention urged was that if five persons
were given the benefit of doubt and found not guilty of the
murder of Gour Chandra Sarkar, there was no reasonable
basis for coming to the conclusion that Surajit Sarkar
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alone had committed the murder of Gour Chandra
Sarkar.
Discussion:
(1) Whether a telephonic intimation is an FIR:
35. As far the first contention is concerned that the
telephonic call should be treated as the FIR and not the
complaint made by PW-1 Susanta Sarkar, we find no
merit in the submission.
36. Section 154 (1) of the Cr.P.C. which is relevant for
our purpose reads as follows :-
“154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
37.A bare reading of this section makes it clear that even
though oral information given by an officer in charge of a
police station can be treated as an FIR, yet some
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procedural formalities are required to be completed.
They include reducing the information in writing and
reading it over to the informant and obtaining his or her
signature on the transcribed information.
38.In the case of a telephonic conversation received from
an unknown person, the question of reading over that
information to the anonymous informant does not arise
nor does the appending of a signature to the information,
as recorded, arise.
39.However, we are not going into any technicalities on
the subject, keeping in mind technological advances
made in communication systems. All we need say is that
it is now well settled by a series of decisions rendered by
this Court that a cryptic telephonic information cannot be
treated as an FIR. In this case, the telephonic information
is rather cryptic and was recorded in the General Diary
as follows:
“Today in the marginally noted time I received an information over Telephone from an unknown person Gobindapur, P.S. Santipur, Nadia that today (21.03.1992) night one unknown person was murdered at Arpara, P.S. Santipur, Nadia.
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Accordingly I noted the fact in G.D., and informed the matter to O.C. Santipur P.S. (N).
Sd/- K.P. Majumdar,
S.I.”
40. In Ramsing Bavaji Jadeja, this Court relied on
Tapinder Singh and Soma Bhai and Dhananjoy
Chatterjee v. State of West Bengal, (1994) 2 SCC 220
to hold that a cryptic message given on telephone cannot
be treated as an FIR merely because that information was
first in point of time and had been recorded in the Daily
Diary of the police station. It was also held that the object
and purpose of a telephonic message is not to lodge a
first information report but a request to the officer in
charge of the police station to reach the place of
occurrence.
41. This view was reiterated in Mundrika Mahto v.
State of Bihar, (2002) 9 SCC 183, State of Andhra
Pradesh v. V.V. Panduranga Rao, (2009) 15 SCC 211
and Sidhartha Vashisht v. State (NCT of Delhi),
(2010) 6 SCC 1. We see no reason to take a view different
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from the one consistently taken by this Court in all these
cases.
42. We may only add that it is a matter of regret that
despite the law on the subject being well-settled, such an
argument is raised once again.
(2) Presence of PW-7 at the place of occurrence:
43. The investigations into the crime do leave much
to be desired as pointed out by learned counsel for
Surajit Sarkar. The conduct of PW-7 Sanatan Sarkar was
quite unnatural and a little odd and ought to have been
looked into by the police. This witness was a neighbour of
the victim and it appears from his testimony that after he
witnessed the attack on Gour Chandra Sarkar, he did not
bother to inform the victim’s family, or anybody else and
simply went home. This witness further deposed that he
came to know of the death of Gour Chandra Sarkar only
the next morning.
44. We also find it quite strange that the
investigating officer examined PW-7 Sanatan Sarkar only
on 10th May 1995 that is after a gap of more than a
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month and a half of the incident. One charitable
explanation for this delay is that PW-8 Achintya Sarkar
did not mention the presence of PW-7 Sanatan Sarkar at
the place of occurrence. This possibility gave rise to
another submission by learned counsel for the Surajit
Sarkar that perhaps PW-7 Sanatan Sarkar was not
present at the place of occurrence.
45. Learned counsel for Surajit Sarkar relied upon
Ganesh Bhavan Patel v. State of Maharashtra,
(1978) 4 SCC 371 to contend that the delayed
examination of PW-7 Sanatan Sarkar throws some doubt
on his presence at the place of occurrence. In that case,
there was a delay of a few hours by the investigating
officer in examining the eyewitnesses and it was
observed:
“Delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced.”
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46. We are concerned with a case where there is a
delay of a month and a half in examining an eyewitness.
Perhaps what can charitably be said in defence of the
investigating officer in the present case, unlike in
Ganesh Bhavan Patel, is that it was not mentioned to
him that PW-7 Sanatan Sarkar was an eyewitness. Even
so, it reflects very poorly on the investigations.
47. Learned counsel for the State relied upon a
passage from Banti v. State of M.P., (2004) 1 SCC
414. This passage reiterates a principle earlier laid
down that the investigating officer must be specifically
asked to furnish an explanation for the delay in
examination of a witness. The passage is as follows:
“As regards the delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion (See Ranbir v. State of Punjab [(1973) 2 SCC 444] and Bodhraj v. State of J&K [(2002) 8 SCC 45]).”
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48. In Banti the delay in examining the
eyewitnesses was two days, while in Ranbir Singh the
delay was apparently of four days and in Bodhraj it was
apparently about one week. In none of these decisions
was the investigating officer asked to give an explanation
for the delay in examination of a witness.
49. In State of U.P. v. Satish, (2005) 3 SCC 114
relied on by learned counsel for the State, the reason for
the delay in examination of the witnesses is not quite
clear. But, this Court reiterated the two principles earlier
recognized, namely, that mere delay in examination of a
witness does not make the prosecution version suspect
and that the investigating officer must be asked the
reason for the delay in examination of the witness.
Ganesh Bhavan Patel was explained by observing that
delay in examination of the witnesses was not the only
determinative factor – in fact, there were several factors
taken together along with the delayed examination of
witnesses that provided the basis for acquittal.
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50. Finally, reference was made by learned counsel
for the State to Shyamal Ghosh v. State of W.B.,
(2012) 7 SCC 646 to contend that the delayed
examination of a witness will not vitiate the prosecution
case. We agree that delay per se may not be a clinching
factor but when there is a whole range of facts that need
to be explained but cannot, then the cumulative effect of
all the facts could have an impact on the case of the
prosecution.
51. If the evidence on record is looked at in
perspective, namely, that PW-7 Sanatan Sarkar an
eyewitness to the incident did not bother to inform
anybody in the family of Gour Chandra Sarkar about the
assault on his neighbour; that this eyewitness was
examined by the investigating officer more than a month
and a half after the occurrence; that the presence of this
witness was not mentioned by PW-8 Achintya Sarkar also
an eyewitness to the incident, leads us to have some
doubt about the presence of PW-7 Sanatan Sarkar at the
place of occurrence.
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52. Learned counsel for the State submitted while
relying on Visveswaran v. State, (2003) 6 SCC 73, C.
Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567
and Sheo Shankar Singh v. State of Jharkhand,
(2011) 3 SCC 654 that a defective investigation need not
necessarily result in the acquittal of an accused person.
53. In Visveswaran all that this Court observed was that:
“In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.”
Similarly, in Muniappan this Court held:
“The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth.”
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Finally in Sheo Shankar Singh it was held as follows:
“Deficiencies in investigation by way of omissions and lapses on the part of investigating agency cannot in themselves justify a total rejection of the prosecution case.”
54. We are not prepared to accept as a broad
proposition of law that in no case can defective or shoddy
investigations lead to an acquittal. It would eventually
depend on the defects pointed out. If the investigation
results in the real culprit of an offence not being
identified, then acquittal of the accused must follow. It
would not be permissible to ignore the defects in an
investigation and hold an innocent person guilty of an
offence which he has not committed. The investigation
must be precise and focused and must lead to the
inevitable conclusion that the accused has committed
the crime. If the investigating officer leaves glaring
loopholes in the investigation, the defence would be fully
entitled to exploit the lacunae. In such a situation, it
would not be correct for the prosecution to argue that the
Court should gloss over the gaps and find the accused
person guilty. If this were permitted in law, the
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prosecution could have an innocent person put behind
bars on trumped up charges. Clearly, this is
impermissible and this is not what this Court has said.
55. It is clear from the record that the investigation
has left unanswered several questions regarding PW-7
Sanatan Sarkar. Under the circumstances, it is difficult
to accept that PW-7 Sanatan Sarkar was present at the
place and at the time when Gour Chandra Sarkar was
attacked.
(3) Evidence of PW-8 Achintya Sarkar:
56. We are now left only with the evidence of PW-8
Achintya Sarkar. In the case of this witness also the
facts are a little odd in as much as when the crime took
place he was about 12/13 years old. When he was
chased away by Gopal Sarkar, Jamai Gopal Sarkar and
Bhebesh Sarkar, he naturally feared for his life and went
into hiding. It is not clear what his movements were
thereafter.
57. In his deposition, PW-8 Achintya Sarkar stated
that he came back to the place of occurrence and saw
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the dead body of his father. This could have been only
around midnight on 21st March 1995 after the inquest
proceedings were over and the seizure of some items at
the place of occurrence was concluded by the police.
Assuming this to be so, it is not clear where PW-8
Achintya Sarkar hid himself after that and why. In any
event, he came back home only at 2.00 am on 22nd
March 1995 when he told his brother PW-1 Susanta
Sarkar about the incident and soon thereafter narrated
the events to the investigating officer.
58. While the reaction of PW-8 Achintya Sarkar is
understandable, what is not understandable is the
conduct of his family. The members of his family seem to
have not taken any action to find out the whereabouts of
PW-8 Achintya Sarkar after they came to know about the
murder of Gour Chandra Sarkar. We would imagine that
on coming to know of the murder, the primary concern of
the family would have been the safety of PW-8 Achintya
Sarkar. However, no efforts appear to have been made to
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locate his whereabouts or to search for him or even to
inform the police about his disappearance.
59. However, merely because PW-8 Achintya Sarkar
and his family acted a little strangely would not
necessarily lead to the conclusion that this witness
should not be believed. There is nothing on record to
suggest that he was not at the place of occurrence when
his father Gour Chandra Sarkar was attacked. There is
also nothing on record which could lead to any inference
or conclusion that PW-8 Achintya Sarkar made up a
story about the attack on his father by Surajit Sarkar.
60. It is true that there is some discrepancy or some
gap in the whereabouts of PW-8 Achintya Sarkar
between the time of the attack and his returning home at
2.00 a.m. on 22nd March 1995 but that by itself is not
enough to discredit this witness, more so when he was
not asked any question on his whereabouts.
61. Also, this discrepancy does not destroy the
substratum of the case of the prosecution and therefore
there is no reason to throw it out on this ground. What is
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a minor discrepancy has recently been dealt with in
Syed Ahmed v. State of Karnataka, (2012) 8 SCC
527 (authored by one of us, Lokur, J.) and the view
expressed therein need not be repeated.
62. We find that PW-8 Achintya Sarkar successfully
withstood his cross-examination and we agree with the
Trial Court and the High Court that he was a credible
witness who ought to be believed when he says that he
was at the place of occurrence and that he saw his father
Gour Chandra Sarkar being attacked by the Surajit
Sarkar.
(4) Acquittal of co-accused:
63. The final contention of learned counsel for
Surajit Sarkar was that since five of the accused persons
were given the benefit of doubt there is no reason why he
should not be given the benefit of doubt.
64. In Gurcharan Singh v. State of Punjab, AIR
1956 SC 460 this Court held, in a case where some
accused persons were acquitted and some others were
convicted, as follows:
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“The highest that can be or has been said on behalf of the appellants in this case is that two of the four accused have been acquitted, though the evidence against them, so far as the direct testimony went, was the same as against the appellants also; but it does not follow as a necessary corollary that because the other two accused have been acquitted by the High Court the appellants also must be similarly acquitted.”
65. Learned counsel for the State drew our attention
to Komal in which it was held that merely because some
of the accused persons have been acquitted by being
given the benefit of doubt does not necessarily mean that
all the accused persons must be given the benefit of
doubt. It was observed that:
“….the complicity of two accused persons who were armed with guns having been doubted by the High Court itself, they have already been acquitted which cannot in any manner affect the prosecution case so far as the appellants are concerned against whom the witnesses have consistently deposed and their evidence has been found to be credible.”
66. Similarly, in Gangadhar Behera reliance was
placed on Gurcharan Singh and it was held:
“Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a
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court to differentiate the accused who had been acquitted from those who were convicted.”
67. Gangadhar Behera was cited with approval
somewhat recently in Prathap v. State of Kerala,
(2010) 12 SCC 79.
68. We agree that Surajit Sarkar cannot be absolved
of his involvement in the death of Gour Chandra Sarkar
merely because the other accused persons were either
not identified by the eyewitnesses or had no role to play
in the attack on Gour Chandra Sarkar. There is the
cogent and reliable evidence of PW-8 Achintya Sarkar to
hold that Surajit Sarkar attacked Gour Chandra Sarkar
which ultimately resulted in his death. The contention
of learned counsel for Surajit Sarkar is rejected.
69. We may mention that learned counsel for Surajit
Sarkar submitted that there was a delay in forwarding
the FIR to the concerned Magistrate. Since no
foundation has been laid for this contention nor was this
contention urged either before the Trial Court or before
the High Court we see no reason to entertain it at this
stage.
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Is it a case of murder:
70. What now remains to be considered is whether
Surajit Sarkar intended to murder Gour Chandra Sarkar
or is it a case of culpable homicide not amounting to
murder?
71. Given the nature of injuries, it is difficult to
accept the view that Surajit Sarkar intended to cause
the death of Gour Chandra Sarkar or that the injuries
were so imminently dangerous that they would, in all
probability, cause death. The murder of Gour Chandra
Sarkar would, therefore, be ruled out. Nevertheless, the
injuries were quite serious and inflicted by Surajit
Sarkar on Gour Chandra Sarkar’s head with an iron rod,
as stated by PW-8 Achintya Sarkar. We can surely credit
Surajit Sarkar with the knowledge that if a person is hit
with an iron rod on the head, then the act is likely to
cause the death of the victim. That being so, in our
opinion, it would be more appropriate to hold Surajit
Sarkar guilty of an offence of culpable homicide not
amounting to murder. Since we attribute to him the
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knowledge of his actions, he should be punished under
the second part of Section 304 of the IPC.
Conclusion:
72. Accordingly, we set aside the conviction of
Surajit Sarkar for the offence of the murder of Gour
Chandra Sarkar. However, we hold him guilty of an
offence punishable under the second part of Section 304
of the IPC. He is sentenced to undergo rigorous
imprisonment for a period of 10 (ten) years. The fine and
default sentence awarded by the Trial Court are
maintained.
73. The appeal is disposed of on the above terms.
.………………………. J. (Swatanter Kumar)
….……………………. J. (Madan B. Lokur)
New Delhi; December 4, 2012
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