Calcutta High Court (Appellete Side)
Uday Bagdi vs The State Of West Bengal on 17 July, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 57 of 2015
Uday Bagdi
-vs-
The State of West Bengal
For the appellant : Mr. Sabir Ahmed, Adv.
Ms. Ameena Kabir, Adv.
Mr. Syed Shahidul, Adv.
For the State : Mr. Rana Mukherjee, Adv.
Mr. Sudip Ghosh, Adv.
For the de facto : Mr. Bitasok Banerjee, Adv.
complainant
Heard on : 17.07.2018
Judgment on : 17.07.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 22/23.12.2014 passed by the learned Additional Sessions Judge, Bolpur, Birbhum in Sessions case no. 142/2004 (Sessions Trial No. 21 of 2008) convicting the appellant for commission of offence punishable under Section 304 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/, in default to suffer simple imprisonment for six months more.
The prosecution case, as alleged, against the appellant and other accused persons is to the effect that on 11.5.2003 at about 9/10 a.m. there was a dispute over a cow eating paddy in the village. Over such issue around 4 p.m. wife of Somai Bagdi assaulted Latika, sister in law of the de facto complainant Duryodhan Bagdi by pulling her hair. When the de facto complainant protested the appellant along with other co-accused persons namely Arun Bagdi, Somai Bagdi, Buro Bagdi, Lalu Bagdi accompanied by their wives attacked them with lathi, iron rod, knife, axe etc. Kartick Bagdi, nephew of the de facto complainant intervened and was assaulted by the appellant and Somai Bagdi with lathi and axe. As a result, he died on the spot. Maka Bagdi and others also suffered injury. Over the incident, FIR was registered against the appellant and other accused persons being Nanoor P.S case no. 46/03 dated 11.5.2003 under section 147/149/323/325/302 IPC. In conclusion of investigation charge-sheet was filed under the aforesaid sections. The case being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, Bolpur, Birbhum for trial and disposal.
Charges were framed against the appellant and Somai Bagdi under section 302/34 IPC and against the other accused persons under sections 148/323/325/149 IPC. The appellant and the other accused persons pleaded not guilty and claimed to be tried. In the course of trial prosecution examined 15 witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by judgment and order dated 22/23.12.2014 convicted and sentenced the appellant, as aforesaid. By the selfsame judgment and order the trial Judge acquitted other accused persons Arun Bagdi, Somai Bagdi, Buro @ Sanatan Bagdi, Lalu Bagdi, Santana Bagdi, Laxmi Bagdi, Gita Bagdi, Tarubala Bagdi of the charges levelled against them.
Mr. Ahmed, learned Advocate appearing for the appellant submitted that there is wide divergence between the manner and course in which the incident occurred as reflected in the first information report and the deposition of witnesses. He submitted although it has been alleged in the first information report that the appellant and Somai Bagdi assaulted the victim, Somai Bagdi was acquitted but the appellant was convicted on the selfsame charge. Ocular evidence with regard to assault upon the victim by the appellant alone is inconsistent and contradictory and does not inspire confidence. He further submitted that the place of occurrence has not been proved in the instant case. Somai Bagdi suffered injuries in the course of the incident which has not been explained by the prosecution.
Mr. Ahmed further submitted that there is confusion as to where the first information report was written or lodged in the instant case. He also submitted that neither the offending weapon was seized nor the same has been produced during trial. He accordingly prayed for acquittal of the appellant.
On the other hand, Mr. Mukherjee, learned Advocate for the State argued that the trial Judge has rightly appreciated the evidence on record and in view of the consistent deposition of the witnesses that the appellant had hit with a shabol on the head of the victim which is corroborated by medical evidence had come to a finding of guilt against the appellant. Evidence of assault by other accused persons including Somai Bagdi is not been supported by medical evidence. Accordingly, the trial Judge extended the benefit of doubt to them. Hence, the appeal is liable to be dismissed.
PW 1 is the de facto complainant in the instant case. He deposed that the incident occurred on 27th day of Baisakh about 6 years ago. Panchayat election was going on that day. At 10 A.M., his elder sister-in-law, namely, Latika Bagdi and daughter-in-law Pampa Bagdi were severely assaulted. Quarrel arose over damaging of paddy by cows on that day. He came to know the reason of the quarrel from his elder brother. At that time Mrinal Kanti Ghosh came there. While they were talking about casting of vote, Somai Bagdi came to the spot and assaulted him on the shoulder with a lathi and the female accused persons attacked them with broom, lathi and katari. He was injured. When his nephew Kartick came to save him Uday Bagdi assaulted him with a sabol on his head. Somai Bagdi, Arun Bagdi and others were also there. Kartick died on the spot. Seeing this he became unconscious. His elder brother, Makaram Bagdi was also assaulted by Somai, Uday, Arun and others. Police arrived at the spot after getting information. Police sent him to Nanoor PS with a constable. He lodged written complaint at Nanoor PS. FIR was written by Asoke Kumar Ghosh. The OC was present there. He proved his signature on the FIR (Exbt.1). He proved signature on the inquest report (Exbt.2). He was treated at Nanoor Hospital and thereafter at Sian Hospital. Darogababu interrogated him. He gave statement before the learned Magistrate. He proved his signatures on the statement. In cross-examination, he deposed that he is illiterate. He stated that he met Ashoke babu on the road on the date of occurrence. He went police station with Ashoke babu. Asoke babu wrote the FIR. His house is situated 25 meters towards south of the place of occurrence. House of the accused persons is adjacent to the place of occurrence. Darogababu interrogated him in connection with the incident. Subsequently, in the month of Bhadra, Darogababu interrogated him. He did not inform the matter to the police when his Boudi and Bouma were assaulted. In the FIR he has mentioned Uday Bagdi assaulted Kartick Bagdi with a sabol on his head.
PW 2 Bipadtaran Bagdi deposed that an incident occurred on 27th Baisakh about 5/6 years ago at about 4 P.M. Somai Bagdi, Uday Bagdi, Arun Bagdi and others assaulted Kartick on the head with a sabol. As a result Kartick died at the spot. Police came to the place of occurrence and arrested the accused persons. He put his signature on the seizure list. He identified bamboo stick and sabol produced in Court which were recovered from the house of Arun Bagdi (Material Exhibit I and II respectively). In cross-examination, he deposed that he put his LTI on the paper at the place of occurrence. Police brought the material exhibit I & II from the house of Uday Bagdi.
PWs. 3 and 5 have not supported the prosecution case and were declared hostile. PW 5, however, admitted his signature on the inquest report (Exbt. 2/1).
PW 6, Ashoke Ghosh is the scribe of the first information report. He deposed that he was an agent in the pooling booth and he heard a dispute was going on at Bagdipara. He went to Bagdipara and came to know from Pampa Bagdi that her husband was killed by Somai Bagdi and others. Police came to the spot and inspected the dead body. Police seized a bamboo stick and one sabol from the house of Arun Bagdi. He put his signature on the seizure list. He put his signature in the inquest report. He wrote the FIR as per dictation of Durjodhan Bagdi. He proved his signature on the FIR (Exbt.1/1). He identified bamboo stick and sabol (material exhibit I and II).
PW 7, Pampa Bagdi is the wife of the victim. She deposed that a dispute arose over damaging paddy by cattle on the date of occurrence. Somai Bagdi and others assaulted her mother-in-law Latika Bagdi. Thereafter, the accused persons assaulted her uncles-in-law Duryodhan (PW 1) and Makaram Bagdi. Her husband, Kartick Bagdi intervened and was assaulted by the appellant and other accused persons. Somai assaulted her husband with bamboo stick. Arun Bagdi assaulted her husband with boti and other accused persons were armed with katari and heso also. Uday Bagdi assaulted his husband with the back side of sabol. Tarun Bagdi assaulted her husband with a big boulder on the forehead of her husband. She saw the whole incident with her eyes. She made statement before the Magistrate. In cross-examination, she stated that Somai sustained injuries on the leg as she tried to flee from the spot jumping from the window.
PW 9, Latika Bagdi is the mother of the victim. She stated that on 27th day of Baisakh about 6 years ago an altercation took place over damage of paddy by cattle. The accused persons abused them in filthy language. Taru Bagdi assaulted her by pulling her hair and pushing her on the ground. Then Lakhi, Santana and Chinta assaulted her. Thereafter she went inside the house. In the afternoon her brother-in-law Durjadhan and Makaram went to enquire about the reason for assault. Thereupon, Arun and Somai started assaulting them and caused bleeding injuries to them. Kartick went to save his uncle. Uday Bagdi assaulted Kartick with a sabol on his head. Kartick fell down on the ground. Somai assaulted him with lathi. Tarubala Bagdi came there and threw a mud boulder on the face of Kartick. She had made statement before Magistrate.
PW 10, Maka @ Makaram Bagdi deposed that the incident occurred on 27th day of Baisakh about 6 years ago. The first incident occurred in the morning. Then he was not in the house. During the first incident Latika Bagdi was assaulted by wives of Bama, Buro, Laloo and Chinta over damaging of crops by cattle. Around 4 P.M. on that date his brother Durjodhon went to ask about the cause of assault whereupon Somai, Udoy assaulted him and his brother. He sustained injury on his jaws. His nephew Kartick intervened. Thereafter Uday assaulted Kartick with a sabol on his head. Somai also assaulted Kartick with a lathi. Thereafter wife of Somai threw earthen boulder on the face of Kartick. Kartick died on the spot. He made a statement before the Investigating Officer and the Magistrate. He proved his signature on the statement.
PW 11, A.S.I. Swapan Singha Thakur received the first information report at the police station from Constable Dukhoharan Chowdhury and registered formal FIR (Exbt.5).
PW 13, S.I. Dhanapati Ghosh was the first investigation officer in the instant case. He prepared a rough sketch map with index. He held inquest over the dead body of the victim. He sent the dead body for postmortem examination. He recorded the statement of the witnesses. He seized one sabol and bamboo lathi from the place of occurrence. On 9.7.2003 he handed over investigation to PW 12. In cross-examination, he stated that Somai Bagdi was arrested on 13.06.2003 from Bolpur SD Hospital. He gave information to SDJM, Bolpur on 16.05.2003 that he arrested Somai Bagdi on 16.05.2003 at Bolpur SD Hospital. According to the sketch map the place of occurrence is on the road. He did not seize bloodstained earth from the place of occurrence. He seized material exhibits I and 2 from the house of Arun Bagdi. There were no blood stains on material exhibits I and II. Place of occurrence is near the house of the accused Arun Bagdi. There is no note in the case diary that house of Durjodhan Bagdi is situated in another para.
PW 12, S. P. Singharoy was posted as Officer-in-Charge of Nanoor Police Station and the second investigating officer of the instant case. He took over investigation from Mr. D.P. Ghosh, the then OC of Nanoor PS. He recorded the statements of the witnesses. He also made prayer for recording their statements under Section 164 Criminal Procedure Code. He submitted charge-sheet.
PW 14, Dr. Rasamay Sarkar is the postmortem doctor. He deposed that the cause of death was due to cerebral damage due to heavy blunt trauma over vertex which is ante mortem in nature. In cross-examination he deposed that the injury on the victim may take place if anybody is hit with hard, blunt object like sabol, iron rod etc. From the evidence on record it appears that the victim had suffered injury on his head in the evening of 11.05.2003. PW 14 noted a single injury on the head of the victim. The cause of death was due to cerebral damage due to heavy blunt trauma which was ante mortem in nature. PW 14 further deposed that such injury may be caused by a blunt object like sabol. Evidence of the prosecution witnesses particularly that of PWs 1 and 10 show that the incident of assault on the victim occurred on the road which is adjacent to the house of one Arun Bagdi, a co-accused who has been acquitted in the instant case. Both these witnesses deposed that they were present at the spot when the incident occurred. They claimed to be injured due to the assault by the other accused persons. Their injury reports though tendered in the course of trial have not been proved. It appears from their evidence that the other accused persons had assaulted them and at that stage the victim Kartick intervened. Thereupon, Kartick was assaulted by the appellant on the head with a sabol. This version of the witnesses has been severely criticized by the learned Counsel appearing for the appellant. He submitted that the assault on the victim by the appellant as deposed by PW 1 is contradicted by his previous statement in the FIR. It was claimed in the FIR that Uday Bagdi and Somai Bagdi assaulted the victim with lathi and axe. Similarly PW 10 deposed that Uday assaulted the victim with a sabol on the head of the victim while Somai hit him with a lathi and wife of Somai threw an earthen boulder on his face. In view of the contradictions in the evidence of the aforesaid witnesses of the manner and course of assault on the victim and that other accused persons including Somai Bagdi have been acquitted, it was contended the trial court ought to have acquitted the appellant also. It has also been argued although Somai Bagdi was injured and was arrested from the hospital after the incident, no explanation is forthcoming how he suffered the injuries. There is also doubt with regard to the place of occurrence in the instant case. I have analyzed the evidence of the aforesaid witnesses in the light of the aforesaid issues raised on behalf of the appellant. It appears from the evidence on record that there was enmity between the two families. Pre-existing enmity renders it imperative for a Court to weigh the evidence of related witnesses with due care and circumspection. Evidence of the prosecution witnesses particularly PWs 1 and 10 is, therefore, required to be assessed from that perspective. When the ocular version of the eye witnesses as to the nature of injury suffered by the victim is compared with the medical evidence, it would appear that the consistent version of the eye-witnesses that the appellant hit the victim on the head with a shabol is corroborated by the Post Mortem Doctor (PW 14). However, in the absence of any other injury on the body of the victim, the trial court rightly discounted the evidence of the witnesses with regard to the alleged assault on the victim by other accussed persons and extended the benefit of doubt to them including Somai. Such approach on the part of the trial Judge in my considered opinion cannot be said to an unreasonable one. It is trite law that exaggerations or embellishments in the deposition of a witness cannot be a ground to throw out his evidence as a whole particularly when portions of his evidence receive corroboration from other evidence on record. From the evidence on record there is no escape from the conclusion that due to commotion occurring between the two families in the morning of the fateful day, PW 1 was assaulted and when his nephew Kartick intervened, the latter was assaulted by Uday on the head by a shabol. Allegations that the other accused persons including Somai participated in the assault on the victim is not corroborated by the findings of the Post Mortem Doctor who found internal injury on the head only. Appellant Uday, therefore, did not stand on the same footing as the other acquitted accused persons as the medical evidence on record while corroborating the assault by Uday on the head of the victim, does not support the assault by the other accused persons on the victim. As the medical evidence lends credence to the prosecution version of assault by the appellant on the head of the victim with a sabol, I am of the view that the trial court rightly sifted the prosecution evidence and upon separating the chaff from the grain came to a finding of guilt against the appellant while acquitting the other accused persons.
I do not find substance in the contention of the appellant that the place where the FIR had been drafted and registered has not been proved. In cross- examination, PW 1 deposed that the FIR was written at the place of occurrence and thereafter he along with PW 7 had accompanied a constable to the police station where it was received by PW 12. PW 13, Investigating Officer deposed that the weapon of assault was recovered from the house of Arun. The appellant is related to Arun and it is likely that he had secreted the weapon of assault immediately after the incident at the residence of Arun. Hence, I am not persuaded by the submission of the appellant that the weapon of assault had not been seized or produced in court. Although the injury reports of PWs 1 and 10 were not exhibited, I have no reason to disbelieve their version which has a ring of truth as to their presence at the place of occurrence when the appellant assaulted the victim resulting in the latter's death.
In view the aforesaid discussion, I am inclined to uphold the conviction recorded against the appellant. Coming to the issue of sentence, I note that the incident occurred out of a petty dispute relating to destruction of paddy. This small dispute burgeoned into a bigger controversy between the families resulting in a sudden assault on the victim by the appellant. The appellant does not have any criminal antecedent and it cannot be said that he had intended to cause death of the victim. Appellant also did not act in a cruel or unusual manner as would be evident from the fact that he dealt a single blow on the victim. Taking into consideration of the aforesaid facts, I am inclined to reduce the substantive sentence imposed upon him and I direct that he shall suffer rigorous imprisonment for eight years and to pay a fine of Rs.5,000/-, in default to suffer further imprisonment for a period of six months more.
Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of 428 of the Code of Criminal Procedure.
With the aforesaid modification as to sentence, the appeal is disposed of. Copy of the judgment 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.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)