Calcutta High Court (Appellete Side)
Manoj Biswas vs The State Of West Bengal on 15 September, 2009
Author: Kalidas Mukherjee
Bench: Ashim Kumar Banerjee, Kalidas Mukherjee
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
PRESENT:
THE HON'BLE MR. JUSTICE ASHIM KUMAR BANERJEE
AND
THE HON'BLE MR. JUSTICE KALIDAS MUKHERJEE
CRA NO. 340 OF 2003
Manoj Biswas
Vs.
The State of West Bengal
For the Appellants: Mr. Mr. Jaymalya Bagchi
Mr. A. Ganguly.
For the State : Mr. Asimes Goswami
Mr. S. K. Pachhal
Mr. Pushpal Satpathi
HEARD ON: September 4, 2009, September 9, 2009 and
September 10,2009.
JUDGMENT ON: September 15, 2009.
JUSTICE KALIDAS MUKHERJEE, J.
1. This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, Fast Track 1st Court, Asansol in Sessions Trial No. 26 of 2001 arising out of Sessions Case No. 125 of 2001 sentencing thereby the appellant to suffer imprisonment for life under Section 307/341 of the Indian Penal Code. The information was lodged by the victim Md. Mokim. It has been alleged that on 29.1.1994 at about 8.00 P.M. the informant was returning with his hand driven cart through the Monoharbahal Chakballavpur Road. When he crossed Chakballavpur Colliery, three persons intercepted him and demanded money from him. The informant disclosed that he had no money, but, they detained him. One of the persons disclosed his name as Manoj Biswas. Around 11.00 p.m. the informant tried to run away from that place and the accused Manoj pointed his gun at the informant and fired a shot. It struck on the right side of his neck. The informant fled away and reached his residence. He narrated the incident to Salauddin @ Bhola of Kasai Mohalla who took him to the hospital and the informant was admitted there.
2. After receiving the complaint, the Asansol (N) P.S. Case No. 17 of 1994 was started and after completion of investigation charge sheet was submitted.
3. The charge was framed under Sections 341, 307/34 of the Indian Penal Code to which the accused pleaded not guilty and claimed to be tried.
4. The learned Trial Judge upon consideration of the materials on record was pleased to pass the impugned judgment holding that there was an intention to kill the victim. The learned Judge held that the evidence of P.W. 5 inspired confidence and the discrepancies were minor and could be ignored. The learned Judge further held that the evidence of injured (P.W.
5) was corroborated in material particulars by the evidence of Bhola (P.W.
7) as well as by Md. Muktar (P.W. 8), the brother of P.W. 5 and that the evidence of P.W. 5 was worthy of credence. The learned Judge held that the prosecution established the guilt of the accused Manoj under Sections 341/307 of the Indian Penal Code. The learned Judge however did not pass any separate sentence under Section 341 of the Indian Penal Code. Three persons faced the trial and the learned Judge after conclusion of trial held the present appellant guilty and passed the sentence. The learned Judge, however, acquitted the other two accused persons.
5. Mr. Bagchi appearing on behalf of the appellant submits that there are serious contradictions and discrepancies between the F.I.R. and the evidence of P.W. 5 as to the place of occurrence and the infliction of injury. Mr. Bagchi contends that the evidence of P.W. 5 that after sustaining the injury he went to his residence and thereafter narrated the incident to Bhola, is incredible, inasmuch as, it is impossible on the part of a person having sustained bullet injury to travel such a distance of about 500 yards. Mr. Bagchi contends that the injury cannot be said to be grievous one and there is no evidence to prove the intention to kill. Mr. Bagchi submits that the case at best would come under the purview of Section 324 of the Indian Penal Code.
6. Mr. Bagchi contends that according to P.W. 5 he narrated the incident including the name of the assailant Manoj, to Bhola (P.W. 7) but Bhola did not state in his evidence that P.W. 1 disclosed the name of the assailant. Mr. Bagchi contends that P.W. 7 did not state anywhere the name of Manoj as the assailant. Mr. Bagchi thus contends that P.W. 5 was not corroborated by P.W. 7 in material particulars. Mr. Bagchi contends that apart from the bed head ticket there is no separate injury report from the hospital and the doctor did not say that it was an injury endangering victim's life.
7. Mr. Pachhal appearing on behalf of the State submits that the victim sustained bullet injury and the doctor after operation removed the bullet from the neck of the victim. Mr. Pachhal contends that the F.I.R. is not supposed to contain every minute details of the incident and the witnesses deposed about eight years after the occurrence. It is contended that there is no material contradiction between the F.I.R. and the evidence of the P.Ws. Mr. Pachhal submits that the accused himself disclosed his name as Manoj. It is submitted that there was an intention to kill and it is clear from the evidence of the victim that when the accused was trying to shoot for the second time, the victim fled away. Mr. Pachhal submits that there was injury on the vital part of the body which could have been fatal and such nature of injury is sufficient to prove the intention on the part of the accused. Mr. Pachhal submits that there was no evidence of any previous enmity and there is no ground to discard the evidence of the injured.
8. P.W. 5 is the victim. It is in his evidence that when he reached Chakballavpur he was intercepted by the accused persons and when money was demanded he expressed his inability to pay. It is in his evidence that he was assaulted with fists and blows and thereafter he was taken to another colliery. P.W. 1 has stated that the accused Manoj fired at him and being hit he fell down. He has stated that when accused took another cartridge to fire, he fled away and then reached his house. He has stated that he took his wife and came to the house of one Salauddin @ Bhola who informed the P.S. over phone and then took him to hospital.
9. Mr. Bagchi has drawn our attention to the discrepancy between the F.I.R.
and the evidence of P.W. 5 and submits that in the F.I.R. there is no mention that from Chakballavpur he was taken to another colliery. We are of the considered view that F.I.R. is not supposed to contain the minute details of the incident and the discrepancy as pointed out by Mr. Bagchi does not in any way cast any shadow of doubt on the veracity of the prosecution case.
10. P.W. 7 is the person to whom the informant narrated the incident and took him to the hospital after informing the P.S. over the phone. It is in the evidence of P.W. 7 Salauddin @ Bhola that he woke up from sleep and found that Md. Mokim was standing with a cloth pressed on his neck and on being told Mokim disclosed that he was hit by bullet by somebody. P.W. 7 has stated that he informed the Chandmari camp and from the camp the information was sent to the P.S. and thereafter Mokim was sent to hospital by a vehicle.
11. Mr. Bagchi submits that the evidence of P.W. 7 is at variance with the evidence of the victim P.W. 5, inasmuch as, P.W. 5 stated to P.W. 7 that he was hit by bullet fired by Manoj. Although, P.W. 7 did not state the name of Manoj, it is clear from his evidence that he accompanied P.W. 5 to the hospital after giving information to the P.S. The evidence of the victim P.W. 5 stating Manoj as the assailant cannot be disbelieved.
12. P.W. 2 is the doctor who has stated that Mokim was admitted in the hospital under his care having sustained bullet injury in the right side of the neck and on the same day he had undergone an operation for removal of the bullet from his neck. It is in his evidence that the operation was done by him and the bullet was removed. He has proved the bed head ticket. The patient was admitted on 30.1.1994 and discharged on 2.2.1994. The evidence of the victim P.W. 5, therefore, finds corroboration from the evidence of the doctor P.W. 2 that he sustained bullet injury in the right side of the neck and it is also clear from the evidence of P.W. 2 that after operation the bullet was removed. The bed head ticket (Exhibit -
1) shows the admission of the patient with wound of entry of bullet on right side of neck and that post operation treatment was also done. So, both from the evidence of the injured and the evidence of the doctor it is clear that P.W. 5 sustained bullet injury and it was fired by accused Manoj.
13. The contention of Mr. Bagchi about the non-examination of the neighbouring witnesses does not create any suspicion as to the veracity of the prosecution case. The victim sustained bullet injury at the right side of his neck and it is clear that it was a vital part of the body. The bullet was removed after operation. The victim (P.W. 5) has further stated that when he fell down after being hit by bullet, Manoj tried to fire for the second time. P.W. 4 has stated that he examined the bullet and opined that it was bullet head of .303 inch fired cartridge. He has further stated that it was capable of endangering human life. This evidence on record is sufficient to indicate that there was intention on the part of the accused to kill Md. Mokim. The contention of Mr. Bagchi that the injury would come under the purview of Section 324 of the Indian Penal Code is, therefore, not acceptable. Having heard the learned Counsel for the parties and upon consideration of the materials on record, we are of the considered view that the learned Trial Judge rightly convicted the appellant under Section 307/341 of the Indian Penal Code.
14. The learned Trial Judge sentenced the appellant to suffer imprisonment for life under Section 307 of the Indian Penal Code. While passing the sentence the learned Trial Judge took into consideration the evidence of the injured (P.W. 5). P.W. 5 has stated that after being hit by the bullet fired by Manoj, he fell down on earth. He has stated further that after 2/3 minutes Manoj took another cartridge and was trying to load the revolver. Since the appellant was trying to fire for the second time, the learned Trial Judge, according to our considered view, was justified in passing the sentence of imprisonment for life.
15. There is no merit in this appeal and the same is dismissed.
16. It appears that at the time of admission of the appeal suo motu rule was issued against the accused Jaganath Bauri who was acquitted by the learned Trial Judge. After considering the materials on record we find that the learned Trial Judge was justified in acquitting the accused Jaganath Bauri. The suo motu rule is, therefore, discharged.
17. Let a copy of this judgment along with the Lower Court Records be sent to the learned Trial Court immediately.
18. Let a copy of this judgment be sent to the Correctional Home where the appellant is now detained.
19. Urgent xerox certified copy, if applied for, be handed over to the parties as early as possible.
( Kalidas Mukherjee, J.) Ashim Kumar Banerjee. J.
I agree, ( Ashim Kumar Banerjee, J.)