Calcutta High Court (Appellete Side)
Daktar Hansda vs State Of West Bengal on 9 April, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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AS/AKD/TKM&PA
Item No.99
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. 796 of 2015
Daktar Hansda
-Vs-
State of West Bengal
For the Appellants : Mr. Prabir Kr. Mitra, Advocate,
Mr. Pinak Kr. Mitra, Advocate,
Ms. Debolina Das, Advocate.
For the State : Mr. Saibal Bapuli, Ld. A.P.P.,
Mr. Arani Bhattacharyya, Advocate.
Heard on : April 09, 2019
Judgment on : April 09, 2019
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 25.08.2015
and 27.08.2015 passed by learned Additional Sessions Judge, 6th Court,
Paschim Medinipur in Sessions Trial Case No. 6(4)/2014 convicting the
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appellant for commission of offence punishable under Sections 302 of the Indian
Penal Code and sentencing him to suffer rigorous imprisonment for life and to
pay fine of Rs.10,000/-, in default, to suffer further rigorous imprisonment for
three months more.
Prosecution case, as alleged against the appellant, is to the effect that on
23.10.2013at 10.00 P.M., appellant dragged Sushil Hansda from his house and assaulted him mercilessly with a lathi after tying him to a mango tree in front of his house. As a result, the victim died. Over the incident, Chhabi Hansda, wife of the victim, P.W.1, lodged first information report resulting in registration of Goaltore Police Station Case No.119 of 2013 dated 24.10.2013 under Section 302 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed against the appellant. The case was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, 6th Court, Paschim Medinipur for trial and disposal.
Charge was framed against the appellant under Section 302 of the Indian Penal Code. To prove its case, prosecution examined 9 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 the impugned judgment and order dated 25.08.2015 and 27.08.2015 convicted and sentenced the appellant, as aforesaid.
Mr. Prabir Kr. Mitra, learned appearing for the appellant argued that the evidence of P.W.1 and P.W.3, the wife and daughter of the deceased suffers from 3 various contradictions and inconsistencies. Although they claimed to be eye witnesses, manner and course of assault on the deceased was not narrated by the said witnesses either in the first information report or before the police or Magistrate. Hence, embellished version of such interested witnesses ought not be relied upon. It is also submitted that the incident took place in a populated area but no independent witnesses have supported the prosecution case. There is contradiction between the medical evidence and the ocular evidence on record. Investigating Officer did not identify the place of occurrence and the weapon of assault i.e. lathi had not been sent for forensic examination. Hence, the prosecution has failed to prove its case beyond doubt and the appeal is liable to be allowed. He relied on State of Haryana Vs. Ram Singh, (2002) SCC (Cri) 350, in support of his submissions.
On the other hand, Mr. Saibal Bapuli, learned A.P.P. along with Mr. Arani Bhattacharyya, learned Counsel appearing for the State submitted that the evidence of P.W.1 and P.W.3, the most natural witnesses, corroborated one another. Their ocular version is supported by medical evidence. Minor contradictions in their evidence or deficiencies in investigation cannot be a ground to ignore the consistent eye witnesses' version of P.W.1 and P.W.3. Hence, the appeal is liable to be dismissed.
P.W.1 and P.W.3 are the wife and daughter of the deceased. P.W.1, Chhabi Hansda is the de-facto complainant. She deposed on the fateful night while her husband was lying under the chala of their room, appellant dragged her husband outside the house and after tying him with a rope 4 assaulted him severely with a lathi. Her husband suffered severe injuries. Her husband was taken to a local doctor who stated that he had died. She lodged written complaint which was scribed by Dulal, P.W.10. Police came to the place of occurrence and seized lathi and rope under a seizure list. She proved her LTI on the seizure list.
In cross-examination, she stated that her husband was assaulted in front of their house near a mango tree which was two dungs away from their house. A model school was being constructed near the mango tree. She had raised alarm when her husband was being assaulted. There are 8 to10 families residing on the northern and southern side of her house. The appellant is the son of her bhasur.
P.W 3 corroborated the evidence of her mother and deposed her father was assaulted with a 'lathi' after tying him in a mango tree in front of their house. Although they raised alarm, nobody came to save her father. A quack doctor came and examined her father and stated that her father had died. Her mother lodged complained. She signed the seizure list (Ext. 1). She made statement before the magistrate.
P.W 2 is the quack doctor who treated the victim immediately after the incident. He received telephonic call that one Susil Hansda at village Loginohari had suffered injuries. He found pulse of the patient was very feeble and his condition was not stable. He noticed some injury marks on his body. He advised him to be taken to hospital.
P.W 6 is the post mortem doctor. He held post mortem over the body of the victim. He found following injuries:
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1) One blunt injury in scalp- ½" x 1" x 1"
2) One well circumscribed round lesion on abdomen just below left costal margin inverted. Local darkening and burn injury about 1cm in diameter.
3) Another well circumscribed round lesion just below left anterior superior (illegible) spine margin inverted.
4) Another well circumscribed round lesion just above left clavicle margin inverted local blackening darkening and local bleeding.
5) Another well circumscribed round lesion just above superior border of left scapula-margin everted.
On dissection he found the following injuries:
1) Intra cerebral haemorrhage in left parietal region
2) Blood in peritoneal cavity
3) One well circumscribed lesion in stomach in anterior surface near greater car nature All the important organs are found pale.
He opined death was due to the effect of injuries, as noted above, ante mortem and homicidal in nature. He proved post mortem report (Ext. 4).
P.W 10 is the scribe who proved the written complaint (Ext. 5/1). P.W 9 is the investigating officer in the instant case. He deposed that he came to the place of occurrence, prepared a rough sketch map of the place of occurrence. He held inquest over the dead body of the victim (Ext. 8). He recorded statement of the witnesses, seized bamboo stick as well as rope from the place of occurrence under a seizure list (Ext. 1/1). He collected post mortem report and 6 filed charge sheet. In cross examination, he stated that he did not send the seized bamboo stick and rope for forensic examination. He marked place of occurrence in the sketch map as the courtyard of the house of Sushil. He did not specifically ascertain the tree where the victim was tied by the accused.
From the aforesaid evidence on record it appears that on the fateful day the appellant who was the nephew of the deceased had suddenly come to the house of the deceased at night and dragged him out from the house. Thereafter he tied him with a rope to a mango tree and assaulted him. Presence of P.Ws 1 and 3, wife and daughter of the deceased at the place of occurrence is most natural. They corroborated each other regarding the incident and their version finds support from the injuries found by P.W 6, post mortem doctor.
I am unimpressed by the submission advanced on behalf of the appellant that the evidence of the eye-witnesses run counter to the medical evidence. On the contrary, P.W 6, post mortem doctor deposed injuries found on the victim were due to assault by lathi or other hard and blunt substance. Although some suggestions were given to P.W. 6 that such injuries may be caused due to fall on hard or blunt surface but there is no evidence on record probabilising such situation. In view of extensive number of injuries suffered by the victim on various parts of his body, I am of the opinion that such hypothetical suggestion relating to the cause of injuries do not hold water. Nor does it erode the truthfulness of the eye-witnesses. It has been argued no independent witness has not supported the prosecution case. Appellant is the nephew of the deceased and the incident occurred amongst family members.. P.W 3 deposed in spite of raising 7 hue and cry no local people came at the spot. It is common knowledge that neighbours generally do not involve themselves in disputes amongst family members particularly when such dispute has resulted in death of one of them. Hence, I am of the opinion failure to procure independent witness to the incident cannot be a ground to disbelieve the credible version coming from the mouths of the relations in the instant case. It is also to be borne in mind that the relations of the deceased would not falsely implicate one of the family members in the murder. There is nothing on record to show that there was enmity amongst them so as to probabilise a case of false implication. Authority relied on by the appellant is wholly misplaced. In the said case relation witnesses were not believed as defence evidence was led to the effect that the deceased was missing 2/3 days prior to the incident. There were contradictions in the version of the relation witnesses in the said report which is wholly absent in the present case. Accordingly, I am inclined to rely on the deposition of P.Ws 1 and 3 corroborated by the medical evidence of P.W 6 to come to a finding that the appellant had dragged the victim from his house and assaulted him mercilessly with 'lathi' after tying him to a mango tree with a rope.
Failure to send the seized 'lathi' and rope for forensic examination or to correctly mark the place of occurrence in the sketch map prepared by Investigating Officer (P.W. 9) do not constitute incurable defects in the prosecution case, more particularly in the face of the ocular evidence of reliable eye-witnesses, as aforesaid. It is trite law that the defects or deficiencies in investigation by themselves would not erode the truthfulness of the prosecution 8 case which is founded on reliable eye-witness version corroborated by medical evidence.
Accordingly, I uphold the conviction and sentence recorded against the appellant.
The appeal is, thus, dismissed.
The period of detention suffered by appellant during investigation, enquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure.
Copy of the judgment along with LCR 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.)