Calcutta High Court (Appellete Side)
Swapan Ghora vs State Of West Bengal on 4 June, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item no. 366
ss/TKM/RKD
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 84 of 2013
Swapan Ghora
Versus
State of West Bengal
For the appellant : Mr. Kallol Kumar Basu,
Mr.Anindya Sundar Das,
Mr. Debapriya Samanta,
Mrs. Avipsa Sarkar,
Mrs. Swarnali Ghosh
For the State : Mr. Arun Kr. Maity, Ld A.P.P.,
Mr. Anjan Datta
Heard on : 04.06.2018
Judgement on : 04.06.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 26.11.2012 and 27.11.2012 passed by the learned Additional District & Sessions Judge, Fast Track Court, Kakdwip, South 24 Parganas in Sessions Case no. 96(11)/2008 (Sessions Trial No. 3(2)/2009) convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for six months more.
Prosecution case against the appellant and co-accused Arati Ghora is to the effect that the appellant and the deceased Bilwapada Ghora were own brothers. There was enmity between them over landed property. On 31.7.2008 at about 9.30 p.m. while Bilwapada Ghora was returning home from 5 No. Hat, he met the appellant and one Harish Chandra Mondal at the culvert near Raghunathpur. At that time they were taking liquor. Harish Chandra Mondal requested the deceased to consume liquor with them but the deceased found some blue substance in his glass and refused to drink the liquor. Thereafter, he went to his residence and informed the incident to his wife Aduri Ghora, P.W 1 and told her that he intended to inform such incident to the neighbours. At about 10.15 p.m. Aduri Ghora heard shouting and scuffling near her house. She rushed out and found that the appellant and his wife Arati were quarrelling with her husband. In the course of quarrel, the appellant hit her husband on the head with a bhojali. Thereafter the miscreants fled away. Her husband was taken to Kakdwip hospital where he was declared dead. P.W 1 reported the incident to the police station resulting in registration of Kakdwip P.S case no. 142/08 dated 1.8.2008 under section 302/34 IPC against the appellant and his wife, Arati Ghora.
In conclusion of investigation, charge sheet was filed against the appellant and co-accused Arati Ghora. The case was committed to the court of sessions and then was transferred to the court of Additional Sessions Judge, Fast Track Court, Kakdwip, South 24 Parganas for trial and disposal. Charges were framed under section 302/34 IPC and the appellant and Arati Ghora who pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication.
In conclusion of trial, the trial judge by judgment and order dated 26/27.11.2012 while convicting and sentencing the appellant, as aforesaid, acquitted the co-accused Arati Ghora of the charges levelled against her.
Mr. Basu, learned Counsel appearing with Mr. Das for the appellant argued that the evidence of P.W. 1, wife of the victim, is most unreliable. She is a post- occurrence witness and could not have seen the incident of assault. Her version is wholly contradicted by P.W. 11, mother of the victim, who it is admitted was also present at the place of occurrence. It is further submitted that there is every possibility that the victim had suffered accidental injury due to dashing against the electric pole and the recovery of the weapon of offence i.e. bhojali is highly suspicious. Without prejudice to the aforesaid, it is argued that even if the version of the P.W. 1 is believed it appears that there was a heated altercation between the brothers over land dispute and in the heat of passion, the appellant had suddenly assaulted the victim with the blunt side of the bhojali. Hence, the conviction ought to be altered to Section 304 of the Indian Penal Code.
On the other hand, Mr. Maity appearing with Mr. Datta for the State submitted that P.W1 is an eyewitness and her evidence is clear and convincing. She had seen the assault on the victim. The plea of accidental injury on the victim is most unlikely in view of the fact that no liquor was found in the stomach of the victim as per the post mortem repot. It is also argued that pursuant to the statement of the victim, the weapon of offence had been recovered. He, accordingly, prayed for dismissal of the appeal.
P.W 1, Aduri Ghora is the most vital witness in the instant case. She deposed that the incident took place on 9th Shraban in 2008 at around 9 p.m. While her husband was returning from Haat no. 5, he found the appellant and one Harish Chandra Mondal were drinking at Raghunathpur culvert no. 8. They asked her husband to join them and consume liquor. Her husband found some blue substance at the bottom of his glass and refused to drink the liquor. Thereafter, her husband returned to the house and reported the incident to her. Then her husband went out stating that he would bring the matter to the notice of the neighbours. While he was returning, the appellant along with his wife accosted him. Hearing the hue and cry, she reached the place of occurrence and saw that Arati had encircled her husband and the appellant assaulted him on the head with a bhojali. The appellant also pushed her. The house of the appellant is at a distance of 10 cubits from her house. The incident occurred at about 10/10.30 p.m. The appellant is the brother of her husband. After the incident the accused persons fled away. Local people who had arrived at the scene on hearing the hue and cry shifted her husband in an auto rickshaw. On the way to hospital her husband died. She reported the matter to the local police station in writing. One Manaranjan Purkait wrote the complaint as per her dictation. She made statement to the Judicial Magistrate, Kakdwip. She proved her signature on the FIR as well as on the statement before the Magistrate. Police performed inquest over the dead body of her husband. She put her signature on the inquest report.
In cross examination, she stated that 1½ years before death of her husband, disputes cropped up between the parties over landed property. They used to reside in the same Bastu but in different houses. Her mother-in-law (P.W.11) resided with the appellant at the time of occurrence. The disputed land was previously cultivated by her husband. The appellant mortgaged the land for Rs. 18,000/- to one Purna Mondal. The appellant failed to pay the amount and the land could not be freed from encumbrances. Her husband paid the sum and took possession of the land. During the previous year they cultivated the land. Her husband consumed liquor rarely. On the fateful day her husband was driving a power tiller in the land of Palan Das. As the instrument went out of order, he returned home at 9 p.m. Her husband came home around 9 P.M. and reported the matter to her. Thereafter he went out again. Subsequently, he returned around 10.30 P.M. At the relevant point of time she was sitting outside her house. Hue and cry lasted for 10 minutes. When she went to the place of occurrence, she saw her mother-in- law and the accused persons. She told the Magistrate that the accused persons and her mother-in-law had held and assaulted her husband. Except the aforesaid persons, none were present at the place of occurrence.
P.W.2, Saktipada Bera is a neighbour of the victim. His house is situated at a walking distance of 5 minutes from the house of the appellant. On 31st July, 2008 at 10.30 P.M. he was taking dinner when he heard the hue and cry. He came to the place of occurrence and found the husband of P.W.1 with a bleeding injury lying on the brick road in front of the house of the appellant. P.W.1 was crying and stated to him that the appellant and his wife attacked her husband with a bhojali. He along with other persons from the village took the victim to the hospital in an auto rickshaw, where he was declared dead. Hospital authorities informed the matter to local police. Police came to the hospital and held inquest over the dead body and prepared an inquest report. He signed on the inquest report. 1/2 days later, the police went to the house of the accused persons and recovered a Bhojali from the room of the accused persons which was seized under a seizure list. He signed on the seizure list (Ext.3). He identified the Bhojali. He made statement before the Magistrate. He identified his signature on the said statement (Ext.4 & 4/1).
In cross-examination, he stated that he did not enter the house at the time when the Bhojali was seized. He also admitted that such type of Bhojali was available in the market.
P.W.3, Pintu Manna is another neighbour, who is a post occurrence witness and took the victim to the hospital in an auto rickshaw. His is also a signatory to the inquest report.
P.W.4, Nakul Manna is another post occurrence witness and a witness to the seizure of blood stained earth and control earth from the place of occurrence. He proved his signature on the seizure list. He also made statement before the Magistrate.
P.W.5, Dhananjay Dolui is a neighbour. He deposed that on 31.7.2008 around 9.30 P.M. he was returning home from the market. On his way he met the victim who told him that on that day at 9 P.M., while returning from market he had found his elder brother Swapan Ghora and one Harishchasndra near a culvert drinking liquor. They requested the victim to join them and offered him a glass of liquor containing some deleterious substance. He advised the victim to return home. Thereafter he heard a hue and cry at about 9.40 P.M. and went to the place of occurrence. On reaching there, he found human blood on the brick road. On the next morning, he heard from P.W.1 that the appellant and his wife had assaulted the victim with a Bhojali resulting in a bleeding injury on his head.
P.W.6, Nemai Manna, was declared hostile and was cross-examined. P.W.7, Monornanjan Purkait is a neighbour, who has corroborated the evidence of P.W.5.
In cross-examination, he stated that he was a member of the local gram panchayat.
P.W.8, Harish Ch. Mandal, did not support the prosecution evidence. P.W.9, Deb Kumar Dennath is a constable attached to the Kakdwip P.S., who took the dead body for post mortem examination.
P.W.10, Gopal Das is a van puller, who took the dead body of the victim from Kakdwip Hospital to Diamond Harbour Hospital. He was present at the time of seizure of the wearing apparels of the victim and thus is a signatory to the seizure list.
P.W.11, Nitya Bala Ghora, is the mother of the victim. She deposed that her son was murdered two years back but she did not know who murdered him. Appellant is her second son.
In cross-examination, she stated that victim was a drunkard. In the evening of the fateful date the victim came to the house in a drunken state. But he did not make any complaint to her against anyone. Within 30 minutes again he came to their house. The victim expired on the road adjacent to their house. There was a electric pole on the road. She saw the dead body of the victim on the said road at mid night. When she heard the groaning of the victim, she, the appellant and his wife rushed to the said road and found the dead body of the victim with bleeding injury.
P.W.12, Ahindra Mondasl, is the photographer, who took the photograph of the victim. Photographs along with negatives were exhibited (Ext.13). He was also a signatory to the inquest report.
P.W.13, Dr. Dipankar Sarkar, conducted the post mortem over the dead body of the victim and found following injuries:-
1. Incised looking wound 2.4" X 0.4" bone over vault of the skull 3. "
above the root of the nose.
2. Lacerated wound 0.7" X 0.5" muscle over right side of occipital area 3" lateral to midline.
3. Abrasion 0.3" X 0.2" over frontal area.
4. Depressed communicated fracture 2½ X 1.3" on midline with fissured extension for 2½ over right side of frontal bone. On dissection hematoma 2½ X 1½ X0.4" in the tissue of scalp locally.
5. Subdural haemorrhage all over both cerebral hemisphare and also over both lobe of cerebelum entirely.
6. Fracture at the base of the skull on the midline over eranial fossa, about 2½" long and extends posteriorly upto sell.
All the injuries showed evidence of vital reactions. He deposed that the death was due to the effect of injuries and as stated above, ante mortem, homicidal in nature. He deposed that a Bhojali is a moderately heavy sharp cutting weapon. So the corner of the blunt edge of such a weapon can cause this type of injury.
In cross-examination, he stated that if anybody dashed into the corner of an electric pole he will receive an injury similar to injury no.4. If anybody falls on a hard substance, he will receive an injury similar to injury no.2 and if anybody falls on a brick road, there is a possibility of receiving an injury, similar to injury nos. 3 & 4 respectively.
P.W. 14 is the investigating officer in the instant case. He drew the formal first information report (Exhibit 15). He visited the place of occurrence and prepared rough sketch map. He examined witnesses, held inquest over the dead body of the victim in Kakdwip Hospital in the presence of witnesses. He proved the inquest report (Exhibit 2/5). He arrested the accused persons on 01.08.2008. During police custody he took the appellant and seized a bhojali in the presence of witnesses from his bedroom under a cot. He seized the bhojali under a seizure list (Exhibit 3/2). He identified the bhojali material Exhibit I. He seized the wearing apparels of the victim under a seizure list (Exhibit 12/2). He identified the wearing apparels. He arranged for taking photographs of the victim. He arranged for recording of the statements of the witnesses under section 164 of the Criminal Procedure Code. He seized the viscera of the deceased and submitted charge sheet.
Analysis of the evidence on record would show that the prosecution case essentially rests on the version of P.W.1, the wife of the victim. She deposed that the victim had initially come home and complained to her that the appellant and one Harish Chandra Mondal had requested him to consume liquor along with them. He was handed a glass of liquor which contained some blue substance and he refused to drink it. He informed his wife that he would intimate the matter to the local people and were out. Around 10.30 p.m., P.W. 1 heard a hue and cry near her house and came out. She reached the place of occurrence which was in front of the house of the appellant and saw that the appellant and his wife were having a heated altercation with the victim. Such altercation went on for ten minutes. In the course of the altercation the appellant hit the victim on the head with a bhojali and thereafter the miscreants fled away. Her version is corroborated by P.W. 2, a neighbour who arrived soon after the incident and P.W.1 narrated the incident to him. The evidence of P.W. 13, the post mortem doctor, also probabilizes the assault as narrated by P.W. 1 on the victim. It is evident from the evidence of P.W. 13 that the injury on the victim could be caused by the blunt edge of a bhojali.
Relying on the evidence of P.W. 11, the mother of the victim, it was strenuously argued that P.W. 1 could not have been an eyewitness to the incident. It was submitted that P.W. 1 herself admitted that P.W. 11 was present at the place of occurrence. Moreover, the latter (P.W.11) has not supported the prosecution case.
I am not unmindful of the fact that the incident arose out of a family dispute over land between the two brothers, namely, the appellant and the victim. Evidence has come on record that P.W. 11, their mother, was staying with the appellant and in view of the inimical relations between the brothers it is most probable that the mother sided with the appellant with whom she was residing. Hence, it is not unnatural for her to gloss over the violent act of the appellant to protect him from legal punishment.
On the other hand, P.W. 1, the wife of the victim has narrated the incident in a truthful manner. She has described the enmity between the brothers arising over a land dispute. The appellant had mortgaged the cultivable land of the family which the victim had subsequently redeemed. As a result, there was enmity and discord between the brothers. Suspicion between the brothers was so acute that the victim refused to share a glass of liquor with the appellant on the suspicion that he might be poisoned.
Whether such suspicion was genuine or not has not been proved in the instant case, but the aforesaid circumstances clearly portray the suspicious and uncomfortable relationship which the brothers shared at the time of the incident..
In this backdrop one must assess the conduct of the appellant. On the fateful night the appellant and the victim had sat down to share liquor together. The victim suspected that the appellant was trying to poison him and had made such accusation to the local people. On his way back a quarrel cropped up between the parties in front of the house of the appellant. The quarrel continued for ten minutes whereupon the appellant in a fit of passion suddenly hit the victim on the head with the blunt side of the bhojali which resulted in his death. The act of the appellant in hitting the victim on the head with a bhojali is established from the evidence of P.W. 1 and 13 I am loathe to accept the defence suggestion that the victim suffered an accidental injuries in an inebriated condition as the post mortem report does not indicate the presence of any liquor in the stomach of the victim.
However, the medical evidence on record does not show that the injuries caused upon the appellant were sufficient in the ordinary course of nature to cause death. On the other hand, there is ample evidence that there was enmity between the brothers over a land and on the fateful day the victim had made an accusation that his brother had tried to poison him. No evidence is forthcoming to establish such accusation as true.
In this backdrop the brothers started quarrelling with one another which continued for ten minutes. In the heat of such passionate altercation, the appellant suddenly hit the victim on the head with the blunt side of the bhojali resulting in his death. The fact that the appellant hit his brother with the blunt edge of the bhojali in the course of the quarrel clearly shows that he did not intent to kill him and had not acted in a cruel or unusal manner.
The aforesaid facts persuade me to hold that the act of the appellant falls within the fourth exception of section 300 of the Indian Penal Code and I am inclined to scale down the conviction of the appellant from section 302 to section 304 Part I of the Indian Penal Code.
Coming to the issue of sentence I find that the appellant does not have criminal antecedents and the instant case occurred in the course of heated quarrel between the brothers over a land dispute.
In this factual matrix I reduce the sentence imposed on the appellant and direct that he shall suffer rigorous imprisonment for 10 years and pay a fine of Rs. 50,000/- (Rupees fifty thousand only), in default, to suffer rigorous imprisonment for 2 years more. Fine amount, if paid, shall be handed over to P.W. 1 as compensation under section 357 Cr.P.C.
The appeal is, accordingly, disposed of.
Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)