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TMI Blog2016 (11) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants 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 speed up towards Gauripur. Sandip Ghosh, the son of Debol Kumar Ghosh who was sitting inside his medicine shop, namely, "Ma Medical Stores" at R.B.C. Road, Naihati, North 24-Parganas situated at 5 cubits from CPI(M) Office saw the above incident and rushed to CPI(M) Party Office and found his father Debol Kumar Ghosh had sustained bullet injuries on his chest and was lying on the floor. The elder brother of Sandip Ghosh, upon hearing the sound, also came to the Party Office. The victim, Debol Kumar Ghosh was thereafter taken to Green View Nursing Home where he was declared dead by the doctors at 5.00 PM. 3. The information of murder of Debol Kumar Ghosh was received by the Police Officials of the Naihati Police Station, who immediately rushed to the scene of occurrence. After receiving an R.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for the Appellant, Shri Rupesh Kumar learned senior Counsel appearing for the Respondent No. 2 and Parijat Sinha learned Counsel for the State of West Bengal. 8. Shri Kapil Sibal learned senior Counsel for the Appellant, in support of the appeal contends that learned Sessions Judge after considering entire evidence on record had rightly come to the conclusion that evidence led by prosecution contradicts the prosecution story, as to the genesis of occurrence, hence did not commit any error in acquitting the Appellant. It is contended that FIR was ante-dated and ante-timed as rightly held by the trial court. He submitted that from the evidence of PW 1 who gave the written complaint for lodging an FIR, it is clear that he went to the police station after 7.30 PM, hence the FIR could not have been lodged before 7.30-8.00 PM and mention of time of receiving the information in the FIR as 17.35 hour clearly proves that it was ante-timed. 9. Shri Kapil Sibal further submits that FIR, in fact was lodged after inquest report and inquest report according to the evidence was prepared after the 22.35 hours. It is submitted that ante-timing and ante-dating of the FIR was with object to false ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had observed that PW 1 went to the police station at about 7.30/8.00 PM but in the formal FIR Exh. 9, it is recorded that information of the commission of offence was received at 17.35 hours on 16th June, 2000. This entry in Exh. 9 contradicts the aforesaid evidence of the PW 1 as regard to the time of lodging of complaint to the police station. Argument was raised before the trial court that FIR was, not only ante-timed but also ante-dated, as such no reliance should be placed on the Exh. 3. Magistrate had perused both the written complaint and the FIR, which bore the endorsement "seen" dated 22nd July 2000. Trial court held that FIR was dispatched from the police station on 22nd June, 2000 and was received at the Magistrate Court on 23rd June, 2000. The trial court had recorded its conclusion in following words at Page No. 107: As the FIR was antetimed and there was abnormal unexplained delay in dispatching the FIR to the office of the learned Magistrate as well as putting up the same before the learned Magistrate, adverse inference should be drawn against the prosecution. The FIR cannot be attached with much value. Following observations were made by trial court at Page No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 maintain job upto 21.05 hrs. I went to the C.P.I.M. party office at Mitrabagan crossing and prepared a sketch map thereof with index. 15. In the cross-examination, he has stated that ASI Sunil Giri had send him the R.T. message. Sunil Giri ASI thus had received the information of the murder of Debol Kumar Ghosh before 17.15 hours, arrival of Sub Inspector Tapan Kumar Mishra I.O. on the scene at the time as claimed is proved; I.O. also went to the Green View Nursing Home, accompanied by S.I. Manick Chakraborty where dead body of the deceased, Debol Kumar Ghosh was laid. Under the dictation of the I.O., the inquest report was prepared by Manick Chakraborty Sub Inspector of Police, which has started on 22.35 hours. The inquest report which has been proved by witnesses and I.O. clearly records the following: Investigation report over the dead body of Deceased Debol Kumar Ghosh (48) years son of late Kiran Chandra Ghosh of 212/1 R.B.C. Road P.S. Naihati District North 24-Paraganas (Illegible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received before 17.35 hours at the police station which is fully proved by arrival of the police officers much before 17.40 hours as proved by I.O. Hence mention of the time at 17.35 can be treated as the time of receipt of the information of the offence in the police station and there is no such inconsistencies in the FIR so as to come to the conclusion that FIR was ante-timed. 19. FIR as well as the inquest report both mentioned the accused Anjan Dasgupta. The inquest report has not been questioned on any account. The offence, having been committed at around 4-5 PM, registration of the FIR at the police station between 7.30 to 8.00 PM does not cause any reason to draw any adverse inference, more so, when after the occurrence, the deceased was taken to the nearby nursing home where he was declared dead and body remained there till the inquest was over. The another circumstance, which have been heavily relied by trial court and reiterated before us by learned Counsel for the Appellant is dispatch of the FIR to the Magistrate with delay. This Court in Pala Singh v. State of Punjab 1972 (2) SCC 640 has held that delay in forwarding the FIR to court is not fatal in a case in which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and got itself parked on R.B.C. Road after crossing Mitrapara and R.B.C. Road Crossing. He saw Biswanath Paul and Anjan Dasgupta got down from the said motor vehicle and at that very moment, four boys about age 22/23 years came in front of aforesaid party office from side of Mitra Bagan by two Bicycle. He further saw Anjan Dasgupta and Biswanath Paul to point out his father sitting inside the party office. One of the said boys took out a pipe gun and shoot Debol Ghosh. Anjan Dasgupta further observed that "Hay Gechi Tara Tari Chale Aiy". Thereafter, the said vehicle left. In the cross-examination, the witness stood firm with his eye-witness account 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 machi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After looking to the evidence of eye-witnesses, High Court has observed that all of them had deposed of arrival of Maruti Gypsy Vehicle, Presence of Anjan Dasgupta and Biswanath Paul on the place of occurrence and about giving instructions to shoot Debol Ghosh and subsequently helping the persons to flee from the place of occurrence by getting inside the Maruti Gypsy Vehicle. Following are the findings recorded by the High Court: ...From the statements of PW. 1, PW. 2, PW. 3, PW. 4, PW. 6, PW. 10 and also from PW. 21 we find that all of them deposed about arrival of a maruti gypsy vehicle, presence of Anjan Dasgupta and Biswanath Paul on the place of occurrence and also about giving of instruction to shot at Debal Ghosh and subsequently for helping the persons to flee from the place of occurrence by getting inside the maruti gypsy vehicle.... 32. The appreciation of evidence of eye-witnesses and discarding the aforesaid evidences by the learned Sessions Judge was on flimsy ground and based on surmises and conjectures which has been correctly re-appreciated by the High Court. For instance, with regard to eye-witness PW 2 Vijay Das, learned Sessions Judge discard the evidence of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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