Calcutta High Court (Appellete Side)
Dilip Debnath vs The State Of West Bengal on 5 December, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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Item no. 472/Aloke/s.g
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 341 of 2008
Dilip Debnath
Versus
The State of West Bengal
For the Appellant : Mr. Partha Sarathi Bhattacharya, Ld. Adv.
Ms. Paulomi Banerjee, Ld. Adv.
For the State : Mr. Arun Kr. Maiti, Ld. Add. P.P.
Ms. Zareen N. Khan
Heard on : 05.12.2017
Judgement on : 05.12.2017
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 25.04.2008 and 28.04.2008 passed by the learned Additional District and Sessions Judge, Fast Track, 3rd Court, Diamond Harbour Court, Diamond Harbour, South 24 Parganas, in Sessions Trial No. 11(1) 05 arising out of Sessions Case No. 61(7)04 2 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment.
The prosecution case, as alleged, against the appellant and other accused persons is to the effect that appellant was married to the victim Sunita Patra according to Hindu Rites and Customs. The appellant was a trekker driver and in connection with his employment used to come home after an interval of 2/3 days. On 09.05.2004 in the evening the mother of the victim (P.W. 3) had gone to the matrimonial home of the victim along with her niece (P.W.4) to bring the victim to her paternal home for casting vote for the Parliamentary Election in the next day i.e. on 10.05.2004 and stayed there for the night. On the next day, that is on 10.05.2004, the appellant came home around 7 a.m. The appellant had returned home after 2/3 days. There was an altercation between the appellant and the victim over such issue. Thereupon, the appellant dragged the victim inside the room and murdered her by suffocating her and fled away. The parents of the appellants were present but did not rescue the victim.
On the written complaint of the father of the victim, Sagar P.S. Case No. 28/2004 dated 10.05.2004 under Section 302 of the Indian Penal Code was registered against the appellant and his parents. In conclusion of investigation, charge-sheet was filed against the appellant under Section 302 of the Indian Penal Code and his father Bhagyadar Debnath and mother Parbati Debnath under Section 302/109 of the Indian Penal Code and the case was committed to 3 the Court of Sessions and transferred to the Court of Additional District and Sessions Judge, Fast Track, 3rd Court, Diamond Harbour, South 24 Parganas for trial and disposal.
The accused persons pleaded not guilty and claimed to be tried. Prosecution examined 17 witnesses in support of his case and exhibited a number of documents.
In conclusion of trial, the trial judge by judgment and order dated 25.04.2008 and 28.04.2008 convicted and sentenced the appellant, as aforesaid. However, by the selfsame judgment and order the other accused persons were acquitted of the charges levelled against them.
Mr. Bhattacharya, learned counsel appearing for the appellant submitted that it appears from the evidence of the prosecution witnesses that the incident occurred suddenly in the course of a quarrel and without premeditation and, therefore, the conviction under Section 302 IPC is not maintainable.
Mr. Maiti, learned additional public prosecutor with Ms. Khan, learned counsel appearing for the State argued that there is clear evidence on record that the appellant had smothered the victim to death. The provocation on the appellant was slight and, therefore, his conduct of smothering the victim cannot 4 be said to have occurred due to sudden provocation. It is further submitted that the medical evidence supported the ocular version of the incident.
P.W. 1 is the father of the first informant in the case. He deposed that the appellant had married the victim on 13th Agrayan, 1410 according to Hindu Rites and Customs. During the matrimonial life of the couple, his son-in-law twice came to his house. On 28th Baisakh the Parliamentary Election was held. He was at his house. At about 8 a.m. he was proceeding to the booth to cast his vote. At that time his daughter-in-law told him to go home. When he returned home he found his grand daughter was weeping and told him that the appellant had strangulated the victim. Thereafter he rushed to the house of the appellant and found that body of the victim lying in the courtyard. On the previous night, his wife and grand daughter had gone to the matrimonial home of the victim. His wife told him that the appellant had returned home after 3/4 days. When victim enquired from the appellant why he had not returned home for 3/4 nights the appellant dragged the victim inside the room and locked the room. His wife tried to enter the said room. The victim shouted 'save' 'save'. One Aloke Debnath rushed to the house of the appellant for entering the room by breaking the wall of the kitchen. The dead body of the victim was lying in the room. He reported the incident to the police station and duly signed on the written complaint (exbt. 1). Inquest was made in his presence. He signed on the inquest report marked as exbt. 2. The wearing apparels of the victim were seized and he signed on the seizure list marked as exbt. 3.
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P.W. 2 is another son-in-law of the victim of P.W. 1. He has corroborated the evidence of P.W. 1.
P.Ws. 3 and 4 are the most vital witnesses in the instant case. P.W. 3 is the mother of the victim. She deposed that the appellant is a trekker driver by profession and he did not return home regularly. On the previous night she had gone to the house of the appellant along with P.W. 4 to bring the victim back for casting her vote in the Parliamentary Election. On the next day, the appellant return home. The victim enquired of the victim as to why he did not return for 3/4 days. Thereupon the appellant dragged the victim into the room and locked the room. The victim shouted 'bachao' 'bachao'. Subsequently, she stopped shouting. On raising alarm, local residents came to the place of occurrence and opened the room by cutting the roof of the kitchen. The window of the room was broken. The appellant had fled away by breaking the window of the room. The police came and seized the wearing apparels of the victim. She signed on the inquest report.
P.W. 4, grand daughter of the victim. She has corroborated the evidence of P.W. 3.
P.W. 5 is the sister of the victim. She is a reported witness. She has corroborated the evidence of P.W. 1 and 2.
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P.Ws. 6, 7 and 8 are local witnesses who had been declared hostile. P.W. 10 is the doctor who conducted the autopsy over the dead body of the victim. He found the following injuries :
"Total 8 injuries of which 3 were abrasions, 4 were bruises and 1 was haematoma distributed over face and on head".
He opined that the death was due to effect of smothering as noted above, ante-mortem and homicidal in nature. He deposed that such type of injuries may be caused if face, mouth and nostril are compressed by palm or with some intervening pillow like substance. He proved the postmortem report marked as exbt. 4. In cross-examination, he stated that the dead body of the victim was average built and nourished. He agreed with the opinion of Dr. Modi that in adults, such death is only possible if the victim is weak and feeble or is unable to resist having been previously stupefied by intoxicating or narcotic drug. Homicidal suffocation by pressure on the chest is sometimes resorted to in India but in the case of adult it is often accompanied with smothering and throttling and it is usually an act of more than one person.
P.W. 11 was a constable attached to Calcutta Leather Complex P.S. who identified the dead body at the time of postmortem report. 7
P.W. 12 was the Block Development Officer of Sagar who conducted Magisterial inquest. He held inquest over the dead body of the victim. He noticed injury marks on the throat in two places. He prepared the inquest report marked as exbt. 3/2.
P.W. 13 is a reported witness who was present at the time of seizure of articles from the place of occurrence. He signed on the seizure list. Similarly P.W. 14 was also a seizure list witness.
P.W. 15 was the Secretary of the Secretary of Rickshaw Union of Kachuberia. He stated that the appellant was a driver of a trekker. He married the victim out of a love affair.
P.W. 16 was the Secretary of Mazdoor Union. He stated that appellant was a driver of a trekker. There was some dispute amongst the appellant and his wife in their house.
P.W. 17 was an officer of Sagar P.S. at that point of time. He proved the formal first information report marked as exbt. 7. He also proved the inquest report marked as exbt. 8.
From the aforesaid evidence on record particularly that of PWs. 3 and 4, it appears that on the fateful day i.e. on 10-05-2004, the appellant who was a 8 trekker driver by profession had come home after 3/4 days. Once the issue that he had not returned home for a couple of days, there was a quarrel between the appellant and his wife, Sunita. In course of the quarrel, the appellant dragged the victim inside the room and locked the door from inside. Thereafter, it is alleged that he smothered the victim by using his palm or pillow. There is no evidence on record coming from the mouths of the relations of the victim that the appellant had bad relation with the victim. On the other hand, PW 1 stated that the appellant visited his house on several occasions. The conduct of PW 3, the mother-in-law of the appellant, in staying for the night at the latter's residence prior to the incident is indicative of a close and comfortable relationship between the two families.
From the aforesaid facts, it appears that the victim was not subjected to torture or ill-treatment by the appellant at her matrimonial home and there could be no reason on his part to do away with life of his wife. One has to examine the evidence of PWs 3 and 4 in the light of the aforesaid circumstances. From their depositions, it appears that on the date of occurrence, there was dispute between the couple over the issue that the appellant had not returning home for the last 3/4 days. Evidence has come on record that the appellant is a trekker driver and used to stay away from home for 2/3 days due to his occupation. It is, therefore, possible that the appellant was enraged by the unreasonable chastisement of his wife and that too in front of his in-laws when he was unable to return home owing to his occupation. In 9 order to stop the victim from chastising him, the appellant pushed her into the room and possibly put his hand on her face in order to stop her from shouting at him. No doubt, the appellant exerted much more force than what was necessary and caused death of the victim by smothering.
The act of the appellant, in backdrop of the aforesaid facts, do not show that he intended either to kill the victim. However, it is undeniable that the appellant over reacted in the course of a quarrel in a manner which is likely to cause death and, therefore, I am of the opinion that the act of the appellant would fall within the ambit of Section 304 Part I of the Indian Penal Code instead of Section 302 of the Indian Penal Code.
In K. Ravi Kumar vs. State of Karnataka reported in (2015) 2 SCC 638, the Apex Court converted the conviction of a husband from Section 302 IPC to Section 304 IPC when in the course of a sudden quarrel he had poured kerosene oil on his wife and burnt her to death.
In this backdrop, I convert the conviction of the appellant from Section 302 of Indian Penal Code to Section 304 Part I of the Indian Penal Code. I have been informed that the appellant has already been in jail for more than 13 years. Accordingly, I reduce the sentence imposed on the appellant and direct that he shall suffer imprisonment for the period already undergone and shall pay a fine of Rs.10,000/-, in default, shall suffer rigorous imprisonment for two months more.
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In the event, the appellant pays the fine, as aforesaid, and executes a bond to the satisfaction of the learned Chief Judicial Magistrate, South 24 Parganas at Alipore for a period of six months from date in terms of Section 437A of the Code of Criminal Procedure, he shall forthwith be released from custody if he is not wanted in any other case.
The appeal is, allowed to the above extent.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)