Calcutta High Court (Appellete Side)
Sadhu Sardar & Ors vs State Of West Bengal on 11 July, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Manojit Mandal
C.R.A. 759 of 2014
Sadhu Sardar & Ors.
-Vs-
State of West Bengal
For the appellant : Kallol Mondal
Mr. Subir Debnath
Mr. Soham Banerjee
Mr. Krishan Ray
Ms. Amrita Chel
Mr. Souvik Das
Ms. Roma Roy
For the State : Mr. Saibal Bapuli
Mr. Arani Bhattacharya
Heard on : 11.07.2019
Judgment on : 11.07.2019
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 18.9.2014
and 20.9.2014 passed by the learned Additional District & Sessions Judge,
Ranaghat in connection with Sessions Trial No. 10(8)2002 corresponding to
Sessions Case No. 54(4)2002 convicting the appellants for commission of
offences punishable under sections 302/326/34 of the Indian Penal Code and
sentencing them to suffer rigorous imprisonment for life and to pay fine of
Rs.5,000/- each in default, to suffer rigorous imprisonment for six months more
2
for the offence punishable under Sections 302/34 of the Indian Penal Code and
to suffer rigorous imprisonment for ten years and also pay a fine of Rs.5,000/-
each, in default, to suffer rigorous imprisonment for six months for the offence
punishable under section 326/34 of the Indian Penal Code, both the sentences
to run concurrently.
The prosecution case as alleged against the appellants is to the effect that
on 29.10.1998 at around 10.00 p.m. Panchanan Bose (the deceased) and one
Brojen Bose was returning home. When they reached near the house of Gopal
Das six persons encircled them. Five of them were armed with 'Da' and one Nara
had a rubber tube in his hand. Nara placed the tube around the neck of
Panchanan and exhorted others to kill him. At that time Khokan Sardar
assaulted Panchanan with a 'Da' on the backside of his head. Panchanan fell
down. Sadhu tried to assault him but failed as Panchanan had sat down after
receiving the blow from Khokan. Brojen raised hue and cry. He was also
assaulted by Manik Sarder and Gutkel with 'Da'. He received bleeding injuries.
He cried for help. Hearing his cries, Namita, wife of the deceased (P.W. 1) and one
Amaresh Bose, (P.W. 4) reached the spot. Panchanan was conscious and asked
for water. Both the injured persons were taken to Ranaghat S.D hospital and
thereafter shifted to NRS hospital. Over the incident Namita (P.W 1) lodged FIR
being Ranaghat P.S Case no. 236/98 dated 30.10.98 under sections 326/34 IPC
against unknown miscreants. On the way to hospital Panchanan Bose expired
and Brojen (P.W 10) was treated in the said hospital for two months. Brojen was
interrogated in the hospital by police on 30.10.98 and on the next day he
disclosed the incident to Namita (P.W 1) and others. In conclusion of
investigation, charge sheet was filed and the case was committed to the Court of
Sessions and transferred to the Court of the Additional District & Sessions
3
Judge, Nadia for trial and disposal. Charges were framed under section
302/326/34against the appellants and four others. In the course of trial prosecution examined 13 witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication. Nara @ Narayan expired in the course of trial. One Neurosurgeon who examined Khokan Sardar in 2013 was examined as court witness. In conclusion of trial, learned trial judge convicted and sentenced the appellants, as aforesaid. However, by the self-same judgment and order, other accused persons were acquitted.
Learned Counsel appearing for the appellants submits that the false implication of the appellants is writ large in view of the fact that P.W. 10, injured witness, did not disclose the names of the assailants at the earliest opportunity. He disclosed their names two days after the incident to P.W. 1 and others. Injury report of P.W. 10 has also not been exhibited. There are contradictions between the evidence of P.W. 10 in court and his previous statement before I.O., P.W 13. Other witnesses did not see the assailants assaulting the victim. Khokan Sardar suffered from mental illness and a Neurosurgeon was examined as court witness. Hence, the appellants are entitled to an order of acquittal.
Per contra, Mr. Bapuli along with Mr. Bhattacharya learned counsel for the State submits that P.W 10 is an injured eye-witness. He has graphically described the incident of assault on the deceased as well as himself and due to his precarious health condition he was unable to immediately disclose the names of the assailants. Minor contradictions in his deposition ought not to improbabilise his deposition in court. Medical evidence has corroborated the ocular version of P.W 10 and the appeal is liable to be dismissed.
From the rival submissions across the bar and upon analyzing the evidences on record, it appears that the prosecution case hinges on the evidence 4 of the injured eyewitness, P.W. 10. P.W. 10 claimed that on 29.10.1998 around 9.45 P.M. he along with his elder brother Panchanan Bose and one Nirmal Mitra, P.W.8 were returning home in three by-cycles. After some time Nirmal Mitra left for his house and they proceeded towards their house on foot with the bi-cycles. When they reached the house of Gopal Das suddenly 5/6 persons came there and encircled the deceased Panchanan Bose. While one of them, namely, Nara @ Narayan Ghosh since deceased had a rubber tube of cycle, others were armed with Da. Nara put the tube around the neck of his brother and exhorted others to kill him. At that time Khokan assaulted Panchanan with a Da on the back right side of his head. Panchanan fell down. Sadhu also tried to assault his brother with Da but he failed. P.W. 10 shouted "help" "help". Manick Sarder tried to assault him but he resisted him by lifting his hand. He suffered injuries on his left arm. Gutkel also assaulted on his left shoulder by Da for which he suffered bleeding injuries on his left shoulder. Hearing his shouts, his boudi Namita Bose (P.W.1), Amaresh Bose (P.W.4) reached the spot. Panchanan had slight sense and asked for water. They were shifted to Ranaghat S.D. Hospital by Nirmal Mitra (P.W.8) and others in a Van Rickshaw. After administering first aid they were shifted to NRS Hospital. He was admitted in the hospital on 30.10.1998. He narrated the incident to his boudi and others on the next day. He was informed that his brother, Panchanan had died on the way to hospital.
P.W.1, Namita Bose is the wife of the deceased. She deposed on 29.10.1998 around 10.00 P.M. hearing shouts from the road she came to the spot and found 5/6 persons were running away. Her husband was sitting on the road with bleeding injuries. Her Debor Brojen was also sitting covering severe bleeding injuries on his left arm. He was shouting "help" "help". Her husband was barely conscious and asked for water. Both of them were shifted to hospital. 5 She lodged written complaint which was written by her brother Bimal Mitra (P.W.7). On 31.10.1998 Brojen disclosed the incident to her at NRS Hospital.
P.W.3, Bishnupriya Bhadra is a neighbour of the deceased. She arrived at the spot and found Panchanan and Brojen in injured condition. Both of them were shifted to hospital.
P.W.4, Amaresh Bose is another neighbour. He also rushed to the spot. He has corroborated the version of P.W.1 & P.W.3. In cross-examination, he stated that on that night police had gone to the residence of P.W.1.
P.W. 7, Bimal Mitra is a brother of P.W.1, Namita Bose. He scribed the FIR. P.W.8, Nirmal Mitra is another brother of Namita. On the fateful day he accompanied Panchanan, the deceased and Brojen from his medicine shop. They proceeded together till he reached his house. Thereafter they proceeded towards their house. Subsequently, on hearing shouts he came to the spot and found Panchanan and Brojen had received bleeding injuries. Panchanan asked for water. They were shifted to hospital. On 31.10.1998 at the hospital he learnt from Brojen that the appellants had assaulted him and the deceased.
These are the witnesses of fact.
P.W.9 is the post-mortem doctor. He found following injuries on the deceased:-
"1. Sharp cut injury 7"X 2"X 2½" over the back of head and neck on occipito-temporal on right side from about 2" above and medial to right ear to ½" right lateral to midline on back of neck, thus cutting underlying bone and lacerating brain matter.
This injured all three membrances, Brain and spinal cord, lacerated, right occipital cortes, right cerebellar haemisphere and cord."6
He opined death was due to abovementioned injuries i.e. ante mortem and homicidal in nature.
P.W.6, Debnath Chatterjee was an A.S.I. of Police attached to Mirabazar R.O.P. under P.S. Kaliganj. He received the formal F.I.R. from P.W.1. He held inquest over the dead body of the victim.
P.W.13 is the investigating officer in the instant case. He went to the place of occurrence, prepared rough sketch map with index, examined the witnesses, seized a torn cycle tube under a seizure list (Ext.9/1) and collected inquest report from P.W.6. He examined Brojen Bose at NRS Hospital and recorded his statement. He obtained discharge certificate and other medical papers. He submitted charge sheet.
In cross-examination, he was examined with regard to the previous statement made by Brojen Bose.
Dr. Partha Sarathi Saha, a neurologist, was examined as court witness. He deposed he had examined Khokan Sardar once on 15.04.2013. His family members complained of history of abnormal behaviour for 10 years. He admitted he is not a psychiatrist.
Evidence of Brojen Bose, P.W.10 has been criticised on the score that he did not disclose the names of the assailants soon after the incident. Evidence of P.W.7, Bimal Mitra that Brojen disclosed the incident on the way to hospital is also improbable as such version does not find corroboration from the maker, namely, Brojen.
It is also argued that the appellants are known to the deceased and his family members. P.W.1 claimed that she had seen the miscreants running away from the spot with Da. If that were so, why did she fail to disclose the names of the appellants in the first information?
7
I have given anxious consideration to the aforesaid issues raised on behalf of the appellants. Panchanan and Brojen suffered severe injuries due to assault. Panchanan was barely conscious and could merely seek water. Brojen was also severely injured. He was taken to Ranaghat S.D. Hospital and thereafter shifted to NRS Hospital. He was treated in the hospital for two months. Under such circumstances, inability of Brojen to immediately disclose the names of the assailants is most natural owing to precarious physical condition. On the very next day during interrogation by P.W.13 in the hospital Brojen gave out the names of the assailants. In the backdrop of the aforesaid facts, I am of the opinion non-disclosure of names by Brojen prior to his interrogation in the hospital by I.O. on 30.10.1998 is wholly explained and does not militate against the credibility of the prosecution case. P.W.1 was a post occurrence witness and when she arrived at the spot the miscreants were running away from the spot. Therefore, it may not have been possible for her to identify them by face. Hence, failure of P.W.1 to name the appellants in the F.I.R. also cannot be a ground to discredit her deposition in court. On the other hand, evidence of P.W.1, P.W.4 and other witnesses who shortly arrived at the spot corroborates the version of P.W.10 with regard to the assault perpetrated on him and the deceased Panchanan at the place of occurrence. Seizure of cycle tube by P.W.13 from the place of occurrence also re-inforces the prosecution case. Hence, I am of the opinion that assault on Panchanan and Brojen at the place of occurrence leading to the death of the former and hospitalization of the latter has been established beyond doubt.
Next question which requires to be answered is who were the perpetrators of such assault. I have subjected the evidence of P.W.10 in this respect to a deeper scrutiny vis-à-vis his previous statement in Court particularly in view of 8 the fact that Brojen gave out the names of the assailants one day after the incident. Brojen claimed in Court that all the appellants were armed. Such version is missing from his earlier statement to police. In court Brojen claimed that his brother was assaulted by Khokan Sardar and was attempted to be assaulted by Sadhu Sardar. However, before police he claimed that his brother had been assaulted by both the persons. P.M. doctor noted single incised injury on the head of the deceased improbabilising assault by two persons as claimed by P.W. 10 before the police. Distilling evidence of P.W.10 in the light of his previous statement to police and the medical evidence on record, I am of the opinion that the deceased had suffered a singular fatal blow on the head from Khokan Sardar by a Da resulting in his death. Plea of Khokan Sardar with regard to mental illness is too flimsy and does not impress me. In fact, he had intelligently answered all questions put to him under section 313 Cr.P.C. obviating all doubts in this regard. Hence, prosecution has been able to prove beyond doubt that Khokan Sardar had caused a deep fatal cutting incised injury on the head of Panchanan, extensively damaging the brain matter and resulting in his death. Accordingly, he is guilty of committing murder of Panchanan. Conviction of Khokan Sardar is, therefore, recorded under section 302 simplicitor in place of section 302/34 IPC as he was the sole assailant resulting in the death of the victim. Appellant Khokan Sardar was fully aware during trial of the facts and circumstances leading to his conviction and accordingly recording of conviction under section 302 IPC simplicitor, murder, in my considered opinion, does not cause prejudice to him or occasions any failure of justice. However, with regard to the roles of the other appellants in the alleged incident, I am of the opinion although they may have been present at the spot but they did not assault the deceased or intend to kill him. But they shared common intention of causing 9 bodily injuries to the deceased which is likely to be caused. Hence, their conviction may be altered to section 304 Part I read with Section 34 of the Indian Penal Code instead of section 302 read with Section 34 of Indian Penal Code.
However, in view of the evidence of grievous assault on P.W. 10 and his hospitalization for about two months conviction of all the appellants under section 326/34 of the Indian Penal Code is upheld.
In view of modification of the convictions of the appellants, sentences imposed on them as altered are as follows:-
(i) Appellant no.3, Khokan Sardar is directed to sentence to suffer R.I. for life and to pay a fine of Rs.5,000/- in default to suffer R.I. for six months for the offence punishable under Section 302 of Indian Penal Code and to suffer R.I. for seven years and to pay a fine of Rs.5,000/- more in default to suffer further R.I. for six months more for the offence punishable under Section 326/34 of Indian Penal Code.
(ii) Appellant nos. 1, 2 and 4, namely, Sadhu Sardar, Gutkel @ Basudeb Sardar and Manik Sardar are directed to suffer R.I. for ten years and to pay a fine of Rs.5,000/- each in default to suffer R.I. for six months more for the offence punishable under Section 304 Part I/34 of Indian Penal Code and to suffer R.I. for seven years and to pay a fine of Rs.5,000/- more, in default to suffer further R.I. for six months more for the offence punishable under Section 326/34 of Indian Penal Code.
(iii) In view of the fact that no overt act was attributed to Appellant no. 5, Haridas Sardar. Appellant no. 5 is directed to sentence to suffer R.I. for seven years and to pay a fine of Rs.5,000/- in default to suffer 10 R.I. for six months more for the offence punishable under Section 304 Part I/34 of Indian Penal Code to suffer R.I. for seven years and to pay a fine of Rs.5,000/- more in default to suffer further R.I. for six months more for the offence punishable under Section 326/34 of Indian Penal Code.
All the sentences to run concurrently.
The period of detention suffered by the appellants during investigation, enquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure.
The appeal is, accordingly, disposed of.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.) tkm/rkd & PA