Calcutta High Court (Appellete Side)
Rabi @ Rabin Halder vs The State Of West Bengal on 29 November, 2019
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH
CRA 491 of 2017
Rabi @ Rabin Halder
-vs.-
The State of West Bengal
For the Petitioner : Mr. Y. J. Dastoor
Mr. Kaushik Gupta
Mr. Prabir Majumder
Mr. Anirban Tarafdar
Mr. Souvik Dutta
For the State : Mr. Arijit Ganguly
Mr. Avik Ghatak
Heard on : 21/08/2019 & 30/09/2019
Judgment on : 29/11/2019
Tirthankar Ghosh, J:-
The present appeal has been preferred against the judgment and order
dated 30th June, 2017 and 1st July, 2017 passed by the Ld. Additional
District & Sessions Judge, Fast Track 3rd Court, Krishnagar, Nadia in
Sessions Trial No. 1 (April) 12 arising out of Sessions Case No. 14(3)12,
wherein the Ld. Appellate Court was pleased to convict the appellant under
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Section 326 of the Indian Penal Code and sentenced him to suffer rigorous
imprisonment for seven years and to pay a fine of Rs. 5000/- in default five
months simple imprisonment for the said offence.
The prosecution case in short is that one Sunil Biswas lodged a
complaint with the Officer-in-Charge, Krishnaganj Police Station to the effect
that on 17th August, 2011 when he was leveling his land at that time the net
boundary of the adjacent land was displaced with the leg of a bullock, as a
consequence of which, Rabi Halder, Sona Halder and Subhendu Halder,
who were cultivating the adjacent land belonging to Sadhan Mistry attacked
the complainant and his son with deadly weapons. As a result of which
they sustained injuries and his son was severely injured and had to be
removed to Shaktinagar District Hospital.
On the basis of the aforesaid written complaint, Krishnaganj Police
Station Case No. 289/11 dated 17th August, 2011 under Sections
326/307/34of the IPC was registered for investigation against the appellant and two others. On completion of investigation the Investigating Officer (hereinafter referred to as 'IO') submitted chargesheet under the aforesaid sections against the three persons including the present appellant. The case was thereafter committed to the Court of Sessions and the Ld. Court after considering the materials relied upon by the prosecution, was pleased to frame charge under Sections 324/34 of the IPC, 307/34 of the IPC and 326/34 of the IPC. The charges were thereafter read over to the accused persons who pleaded not guilty and claimed to be tried. 3
The prosecution in order to prove its case relied upon 16 witnesses, 5 documents and 2 Materials Exhibits. On the contrary, the defence did not adduce any oral evidence or relied upon any documentary evidence and the defence case is reflected from the trend of cross-examination of the prosecution witnesses.
Ld. Trial Court after completion of the prosecution evidence was pleased to examine the accused persons under Section 313 of the CrPC and thereafter afforded an opportunity to the accused persons to adduce evidence on their behalf, however, the defence did not examine any witness and as such dates were fixed for final arguments of the case. The Ld. Trial Court after hearing the final arguments of the case on behalf of the prosecution as well as the defence was pleased to fix date for delivery of judgment and by a judgment and order dated 30th June, 2017 was pleased to acquit two of the accused persons and convict the present appellant under Section 326 of the IPC. After providing opportunity to the appellant on the point of sentence, the Ld. Court was pleased to impose sentence as aforesaid.
The prosecution witnesses so relied upon are PW1 Sunil Biswas, PW2 Sujit Biswas, PW3 Madan Biswas, PW4 Haridas Biswas, PW5 Samir Biswas, PW6 Karnadhar Biswas, PW7 Rina Biswas, PW8 Shampa Biswas, PW9 Shyampada Biswas, PW10 Biplab Biswas, PW11 Rabindranath Dutta, PW12 Bhajohari Biswas, PW13 Dr. Joydip Roy, PW14 Kanchan Biswas, PW15 Kalpana Biswas and PW16 SI, Meghnad Mondal. From the deposition of the prosecution witnesses it is found that PW1 is an injured witness as also the 4 complainant of this case. PW2 is neighbour, however, he was declared hostile by the prosecution. PW3 is an acquaintance and his residence was in the same area, he was also declared hostile. PW4 is also a resident of the same area, he was also declared hostile. PW5 is also a resident of same area, he was also declared hostile. PW6 is an injured witness. PW7 is sister of PW6. PW8 is wife of PW6. PW9 is the father-in-law of PW6. PW10 is a driver of the vehicle who took PW1 and PW6 to the Krishnaganj Hospital. PW11 is the scribe of the written complaint. PW12 is a resident of the said area. PW13 is a Medical Officer who at the time of incident was posted at Nadia District Hospital. PW14, a resident of the same area, was declared hostile. PW15 is a neighbour of the accused who was also declared hostile. PW16 is the Investigating Officer of the case.
PW1, Sunil Biswas deposed that at about 5 PM in the month of Srabon when he was leveling the accumulated mud in his land at that time the net boundary of the adjacent land and where Rabin Halder used to cultivate got displaced. Seeing this Rabin Halder abused him and left the place and thereafter returned with other persons armed with 'dao', 'lathi' etc. and attacked him. Rabin Halder struck him with dao over his ribs, as a result of which, he fell down and was seriously injured. The witness further deposed that receiving the information that Rabin Halder and his associates were assaulting him, his son Karnadhar Biswas rushed to the place of occurrence when Rabin Halder also struck his son with dao. Both of them were taken to the village Macha and from there to Krishnaganj BPHC. The witness admitted his signature which was marked as Ext.1. He also added 5 that his wearing apparels were seized by police officer under a proper seizure list, which was marked as Ext.2 and his wearing apparels were marked as MAT Ext. I series and his cloth with which his blood was stopped was marked as Ext. II series. The defence cross-examined the witness and gave suggestions in respect of Rabin Biswas of Rajbanshipara, however, the witness emphatically denied the same and stuck to his version which he narrated in his examination-in-chief.
PW2, Sujit Biswas was declared hostile but from his evidence it is clear that he admitted the fact that a quarrel took place over the issue of destruction of flowers.
PW3, Madan Biswas was also declared hostile but it is seen from his evidence that he heard some noise coming from the land but did not see who were shouting.
PW4, Haridas Biswas was also declared hostile but from his evidence it transpired that PW1, Sunil Biswas and PW6, Karnadhar Biswas were seriously injured and they were brought to the house of this witness in an injured condition.
PW5, Samir Biswas was also declared hostile but from his evidence it transpired that Karnadhar Biswas was lying in an injured condition and the witness claimed that it was on his information, the village people brought the injured to 'Macha' and thereafter the injured persons were taken to hospital.
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PW6, Karnadhar Biswas gave a narration of the incident that had taken place in the same manner as deposed by PW1. He further added that the information regarding his father being assaulted by the accused persons were given by Samir Biswas. The witness further deposed that the other accused persons instructed Rabin Halder to assault him and as a result Rabin inflicted injuries below his shoulder on the back. In cross- examination the witness added that there was a quarrel over the issue of destruction of nets. The witness in cross-examination corrected himself so far as Rabin Halder and Rabin Biswas are concerned.
PW7, Rina Biswas is the sister of PW6. The witness deposed that during the dispute Sunil Biswas used abusive language to the accused persons which could have enraged Rabin Halder and that is why Rabin Halder went away to his house and returned back with a 'hesua' and assaulted Sunil Biswas with the same. According to her, although Sunil Biswas did not sustain much injury but when Karnadhar Biswas appeared to save his father, Rabin Halder assaulted him which caused serious injury. The witness also identified materials with which the wounds of PW6 were wrapped up, the same was marked as MAT Ext. I & II.
PW8, Shampa Biswas is the wife of PW6. She deposed before the Court that she heard the incident from PW5, Samir Biswas who came at their house and reported that the accused persons including Rabin Halder assaulted her husband and father-in-law with 'dao, 'hesua' etc. When she reached at the place of occurrence she found that both Sunil Biswas and Karnadhar Biswas were in an injured condition having sustained serious 7 bleeding injury on their person and they were being taken by the villagers to the village Macha. She further stated that the injured persons were thereafter taken to Krishnaganj Hospital for medical treatment. After primary treatment by the doctor they were referred to Saktinagar Hospital at Krishnaganj. She vehemently denied in her cross-examination that she had ever stated that Rabin Biswas assaulted her husband and father-in-law.
PW9, Shyamapada Biswas, the father-in-law of PW6, described regarding the injuries and admitted that he heard the incident from his daughter.
PW10, Biplab Biswas deposed that on 17th August, 2011 he had taken PW1 and PW6 in an injured condition by his TATA SUMO car to Krishanganj Hospital.
PW11, Rabindra Nath Datta is the scribe of the FIR.
PW12, Bhajahari Biswas deposed that he heard regarding the incident of PW1 and PW6 being assaulted by the accused persons and as a result of which they sustained serious bleeding injury.
PW13, Dr. Joydeep Roy referred to the bed head ticket and card (which was 8 pages), the same was admitted in evidence as Ext. 3 series and gave a narration regarding the injuries. It is seen from his evidence that PW6 suffered the following injuries:-
i) oblique incised wound over left sub-auxiliary region measuring
2 ½ '' X ½ '' X 1 ½ '' ,
ii) cutting the muscles, vessels and pleura with massive bleeding, 8
iii) injury was repaired in O.T. and ½ litre blood was drained from chest and blood was also transfused;
PW14, Kanchan Biswas was also declared hostile and he only stated regarding the acquaintance with both the injured as well as the accused persons.
PW15, Kalpana Biswas was also declared hostile and she only expressed her acquaintance regarding the injured and the accused persons.
PW16 is the Investigating Officer of the case.
Mr. Dastoor, Ld. Senior Advocate appearing for the appellant contended that the appellant has been falsely implicated and this would be evident from the version of witnesses which is contradictory to each other, so far as the manner in which the incident has been narrated. He further submits that the version of PW1 who is the eye-witness to the incident is embellished and the investigating agency in the sketch map did not show the land of Sadhan Mistry which itself raises doubt regarding the place of occurrence. He further contends that the factum of false implication cannot be ruled out in this case in view of the fact that one of the injured before the doctor stated that one Rabin Biswas assaulted him and the same is reflected in Ext.3. He further added that the injuries which are reflected in the medical report do not match with the ocular version and as such it would not be safe to rely upon such evidence to arrive at the conclusion of guilt of the accused. Another circumstance which adds to the false implication, according to him, is the delay in sending the FIR to the Magistrate. 9
The Ld. Senior Advocate also relied upon the following judgments in support of his contentions:-
Ram Kumar Pande vs. State of Madhya Pradesh AIR 1975 SC 1026, Lakshmi Singh & Ors. vs. State of Bihar 1976 (4) SCC 394, Balaka Singh & Ors. vs. State of Punjab 1975 SCC (Cri) 601, and Ishwar Singh vs. State of U.P. 1976 SCC (Cri) 629.
Mr. Arijit Ganguly, Ld. Advocate appearing for the State opposes the submissions made by Mr. Dastoor and supports the judgment and order of conviction and sentence passed by the Ld. Trial Court. According to him PW1 and PW6 both were severely injured and the present appellant inflicted vital blows. In order to substantiate his contention, he drew the attention of this Court to the medical report along with the deposition of PW1 and PW6.
I have gone through the evidence on record of the witnesses, I find that PW1 and PW6 are the injured witnesses. So far as the narration of facts of PW1 is concerned the same cropped from a simple issue of the net boundary of the adjacent land being displaced. It has been consistently stated by PW1 that the appellant Rabin Halder initially struck him with a dao over his ribs, as a result of which, he fell down and getting such information when his son PW6 rushed to the place of occurrence at the instruction of others Rabin Halder attacked his son and struck him with dao. I find that this particular statement of PW1 is corroborated by PW6.
The fact of Karnadhar Biswas, PW6 being assaulted was also corroborated 10 by PW7, Rina Biswas. Now from the evidence of PW13 it is found that the injuries were grievous and the patient was brought to the district hospital at about 8 PM on 17th August, 2011. PW13 described the injuries being incised wound over left sub-auxiliary region, massive bleeding and because of drainage of blood, blood had to be transfused. Considering the nature of evidence and the ring of truth attached because of the consistent version of each of the witnesses which is corroborated by the medical evidence, it is difficult for this Court to disbelieve that Karnadhar Biswas was not injured at the place of occurrence.
The contention of the Ld. Senior Advocate for the appellant that it was Rabin Biswas and not Rabin Halder, the appellant who may have been involved in the alleged injuries being inflicted upon the PW1 and PW6, I find that certain suggestions were given based on the medical report. However, the defence did not come up with such alibi which would raise a doubt in the mind of the Court regarding the false implication of the appellant Rabin Halder instead of Rabin Biswas. It would not be out of place to state that at the time when Karnadhar Biswas was taken to hospital, he was severely injured and he was under mental trauma. Further going by the strata of the society to which the appellant and the injured belong I do not think surname is very important as the first name is popularly used in the locality. Thus the plea of the defence that Rabin Halder being falsely implicated instead of Rabin Biswas is not believable as the same is not based on a reasonable set of facts. The other ground which has been canvassed is in respect of the sketch map, I find that the sketch map was 11 prepared for locating the place of occurrence, the names which are drawn may be from statement of different persons. As such I do not think it is very relevant if the Investigating Officer has failed to show the adjacent land to be of Sadhan Mistry where Rabin Halder used to work as a bhag chasi.
In Ram Kumar Pande (supra) relied upon by the Ld. Advocate for the appellant, the Hon'ble Supreme Court summarized the issues in paragraph 14 of the judgment which related to the place where the victim was stabbed, who could have witnessed the incident of stabbing, whether the witness could be believed and whether the dying declaration would be made the sole basis of conviction if the evidence of the eye-witnesses were discarded. Now these issues were framed on the factual background of the case wherein the Hon'ble Apex Court was pleased to take into account the observations of the High Court regarding the site plan which did not show the place of kitchen or the place from where blood was found.
In Lakshmi Singh & Ors. (supra) relied upon by the Ld. Advocate for the appellant, the issue before the Hon'ble Apex Court was when the prosecution fails to explain the injuries sustained by the accused at the time of occurrence or in the course of altercation, then the same is an important circumstance for the Court to draw inferences. To this the Court also took into account the version of the prosecution witnesses who had consistently deposed that the deceased was assaulted by the accused persons with lathi after he fell down. The Hon'ble Apex Court took into account the medical evidence of doctor wherein it was found that there was a solitary injury on the person of the deceased and that was in the abdomen. As such the Court 12 disbelieved the version of the prosecution witnesses. In this background the Hon'ble Supreme Court also took into account the omission on the part of prosecution to send the bloodstained earth found at the place of occurrence as an additional circumstance. This case is not applicable to the factual background of the instant case firstly on the ground that this is not a case of murder and secondly the manner of attack and injuries as narrated in the said case do not apply to the facts of the case which is being dealt with.
In Balaka Singh & Ors. (supra) relied upon by the Ld. Advocate for the appellant, the Hon'ble Apex Court was dealing with a case under Section 302 of the IPC wherein one of the consideration was that the FIR was written after the inquest report was prepared by the police officer. In conformity with the said circumstance the Hon'ble Apex Court was of the opinion that the FIR was not written at the time so stated therein. The facts of this case do not at all apply to the instant case as the investigating agency on receipt of the written information proceeded to investigate the case and the same was within a reasonable proximity of time.
In Ishwar Singh's Case relied upon by the Ld. Advocate for the appellant, is a murder case where one of the contentions advanced on behalf of the appellant was that the FIR was registered on February 14, 1973, it was sent from the police station on the next day but it is seen that the Magistrate received it on February 16, 1973. It was held the word 'forthwith' used in Code loses its significance and no explanation has been offered for the delay. In this case it is seen that the facts narrated in the FIR and the case made out before the Trial Court are factually different and non- 13 mentioning of certain incidents were prime consideration. The delay in sending the FIR was only an added circumstance.
In Tori Singh & Anr. vs. State of U.P. (1962) 1 Cr LJ 469 in paragraphs 7 & 8 it has been observed as follows:-
" .... In the first place, the map itself is not to scale but is merely a rough sketch and therefore one cannot postulate that the spot marked on the map is in exact relation to the platform. In the second place, the mark on the sketch-map was put by the Sub-inspector who was obviously not an eyewitness to the incident. He could only have put it there after taking the statements of the eye witnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub- inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of S. 162 of the Code of Criminal Procedure., for it is in effect nothing more, than the statement of the Sub-inspector that the eye- witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-inspector saw himself at the spot; but any mark put on the sketch map based on the statements made by the witnesses to the Sub-inspector would be inadmissible in view of the clear provisions of S. 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation.
This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of offence, the draftsman put down the places in the map, in Santa Singh v. The State of Punjab, AIR 1956 SC 526. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by S. 162 of the Code of Criminal Procedure. In. that case there was another sketch prepared by the Sub-inspector which was ruled out as inadmissible under S. 162. The sketch-map in the present case has been prepared by the Sub-inspector and the place where the deceased was hit and also the places where the witnesses were at the time of the incident were, obviously marked by him on the map on, the basis of the statements made to 14 him by the witnesses. In the circumstances these marks on the map based on the statements made to the Sub-
inspector are inadmissible under S. 162 of the Code of criminal Procedure and cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the- sketch-map."
This was followed by the Hon'ble Supreme Court in State of H.P. vs. Prem Chand (2002) 10 SCC 518 : 2003 SCC (Cri) 1475, it was observed that if no attempt has been made or any evidence has been adduced through any of the witnesses Tori Singh's case would apply. Further in the instant case the appellant failed to distinguish between a site plan prepared by draftsman and a sketch map prepared by the investigating officer of the case on the basis of statement of witnesses.
In Anjan Dasgupta vs. State of West Bengal (2017) 4 SCC (Cri) 280 delay in despatching FIR was taken into consideration and the Hon'ble Supreme Court was pleased to observe as follows:-
"23. ..... When no questions were put to I.O. in his cross- examination regarding the delay in dispatch, at the time of hearing, the accused cannot make capital of the said delay in forwarding the FIR. This Court in Rabindra Mahto and Another v. State of Jharkhand 2006 (10) SCC 432 has held that in every case from the mere delay in sending the FIR to the Magistrate, the Court would not conclude that the FIR has been recorded much later in time than shown. It is only extraordinary and unexplained delay, which may raise doubts regarding the authenticity of the FIR.
24. The present is the case, where recording of the FIR on 16th June, 2000 itself has been proved, accepted by the trial court also, thus mere dispatch of the FIR on 22nd June, 2000 from the police station to the Magistrates' Court has no bearing on the basis of which any adverse 15 presumption can be drawn. From the above discussion, we are of the clear view that the FIR was genuine FIR and trial court committed an error in drawing adverse inference against the prosecution and refusing to attach value to the FIR.
25. The conclusion of the learned Sessions Judge that the FIR was manipulated is thus found to be erroneous. FIR has been proved by the evidence as noted above. Thus, one of the basis of the decision of the Sessions Judge for discarding the prosecution case is knocked out."
In this case also I do not find that there was any question raised in cross-examination regarding the delayed dispatch as such mere typographical error cannot enure any benefit to the accused/appellant.
Having considered the evidence of all the witnesses and the documents relied upon by prosecution, I find that the injury suffered by PW1 and PW6 has also been supported by some of the hostile witnesses being PW4 & PW5 and there has been a consistent version of the injured witnesses as well as PW7. Further, the manner in which the injured described the incident corroborated with the injury so reflected in the medical report. The plea of false implication was in the form of a mere suggestion in respect of a mistake being committed by recording the name and no importance can be attached to it as it was upon the defence to establish that a person by such name existed.
After scrutiny of the evidence I do not find that there is any reason to interfere with the judgment of conviction dated 30th June, 2017 so passed by the Ld. Trial Court under Section 326 of the IPC.
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However, having regard to the decision of the Hon'ble Apex Court in State of M.P. vs. Udham: 2019 SCC OnLine SC 1378, I hold that the sentence so passed by the Ld. Trial court requires interference. The evidence in this case reveals that the initiation of the dispute was the cause of displacement of net boundary and the appellant has been in custody since 30th June, 2017, further at the stage of investigation he was in custody from 23.8.2011 to 17.11.2011, as such for about 2 years 8 months he is in custody. It has been settled that one of the considerations while sentencing should be comparative proportionality test. Having regard to the injuries so suffered by the victim, I hold that the sentence so imposed by the Ld. Trial Court is disproportionate. Accordingly, the sentence so imposed upon the appellant by the Ld. Trial Court is reduced to the period already undergone by him.
CRA 491 of 2017 is partly allowed.
Department is directed to communicate this order to the Court below and the LCR be sent back to the Lower Court.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Tirthankar Ghosh, J.)