Calcutta High Court (Appellete Side)
Rabin Santra vs The State Of West Bengal on 22 July, 2024
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
C.R.A.(S.B.) 143 of 2022
Rabin Santra
versus
The State of West Bengal
For the Appellant : Mr. Amitabha Karmakar
Mr. Gautam Banerjee
Mr. Arup Kumar Bhowmick.
For the State : Mr. Md. Anwar Hossain
Ms. Sreyashee Biswas.
Heard On : 18.07.2024 and 19.07.2024
Judgement On : 22.07.2024
Tirthankar Ghosh, J. :
The present appeal has been preferred challenging the judgment and order of conviction and sentence dated 01.08.2022 passed by the learned Additional Sessions Judge, 2nd Court, Arambagh, Hooghly wherein the learned trial court was pleased to hold the appellant guilty in connection with Sessions Trial No.05 of 2015 arising out of Sessions Case No.108 of 2014 for commission of offences punishable under Section 304(II) of the Indian Penal Code and Section 325 of the Indian Penal Code and sentence the appellant as follows:
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(i) For the offence under Section 304(II) of the Indian Penal Code to suffer simple imprisonment for a period of two years and to pay a fine of Rs.5,000/-.
(ii) For the offence under Section 325 of the Indian Penal Code - to suffer simple imprisonment for one year and to pay a fine of Rs.5,000/- only.
(iii) By the same order, the learned trial court was pleased to direct that in the case of default of payment of fine the appellant would suffer further simple imprisonment for a period of one month.
50% of the fine amount is to be paid to the family of the victim. The genesis of the case relates to Khanakul Police Station Case No.477 of 2014 dated 28.07.2014. The said case was registered on the basis of an information/complaint submitted by Shyamal Naskar with the Officer- in-Charge, Khanakul Police Station, Khanakul Hooghly. The allegations made in the letter of complaint were to the effect that on 26.07.2014 at about 9.30 p.m. (on a Saturday), the appellant, namely, Rabin Santra and one Manoranjan Santra assaulted his brother Dukhiram Naskar with fists, blows and kicks, thereafter, they threw him on the ground near Sabalsinghapur ICDS centre. At the time of incident on hearing hue and cry, the complainant being accompanied by neighbours reached the spot when both the accused fled away. At the time of fleeing away the accused persons threatened the complainant and the neighbours that they would kill them. It has further been alleged that when the duo accused persons assaulted the 3 deceased/victim they kicked him at his abdomen when he received severe injury and was writhing in pain. The victim was admitted to Arambagh Nursing Home on 27.07.2014 (Sunday) as he sustained serious injury. As the physical condition of the victim/deceased deteriorated the Nursing Home Authorities refused to treat him and he was referred to Arambagh Hospital. At about 3.00 pm on 28.07.2014 the victim expired.
On receipt of the information, Khanakul P.S. Case No. 477 of 2014 dated 28.07.2014 was registered for investigation under Sections 341/323/326/302/504/506(2)/34 of the IPC.
On completion of investigation, the investigating officer submitted Charge-sheet under Sections 341/326/304/504/506(2)/34 of the IPC against the appellant and another.
The case was thereafter committed to the Court of Sessions and the same was thereafter transferred to the ld. Trial Court being the ld. Addl. Sessions Judge, 2nd Court, Khanakul, Arambagh. The learned trial Court was pleased to frame charges against the accused persons under Sections 341/325/304/504/506(2) of the Indian Penal Code.
The prosecution in course of trial, in order to prove its case, relied upon eight witnesses being P.W.1- Shyamal Naskar, complainant and brother of the deceased; P.W.2 - Pratima Naskar, sister-in-law, i.e., w/o. brother of the deceased; P.W.3- Purnima Naskar - Widow of the deceased Dukhiram Naskar; P.W.4 - Bikas Dalui, neighbour; P.W.5 - Dr. Sourav Acharya, P.M. Doctor; P.W.6 -Prabir Kr. Singh, ASI of Police, who conducted inquest as also 4 prepared the challan in connection with the U.D. Case; P.W.7 is the first Investigating Officer of the case; P.W.8 is the Second Investigating Officer, who submitted charge-sheet.
PW-1, Shyamal Naskar in his deposition before the court stated that Dukihiram Nakar was his brother and they were three brothers who resided in the same homestead but in different mess. The witness described the location of ICDS centre which was at a walking distance from his house. In order to explain the close proximity of the distance, the witness described the place of occurrence being within hearing distance of the house and which is also visible from their house. According to him, the incident took place on 26-07-2014 between 9.00 - 9.30 pm when on hearing hue and cry coming from the ICDS centre he along with his sister-in-law, daughter-in-law and other local people rushed to the place of occurrence and found that the accused persons namely, Robin Santra and Manoranjan Santra were assaulting his brother Dukhiram Naskar with fists, blows and kicks in his lower abdomen. The witness identified the accused and stated that when they tried to rescue Dukhiram Naskar (deceased), the accused persons intimidated them also, however, they fled away. At that time, the deceased was writhing in pain on the ground when a quack doctor namely Koushik doctor was called at 11.00 to 11.05 pm. The doctor advised them to get the injured admitted at the hospital, on the next day the victim was admitted at a nursing home at Basantapur, Arambag. The victim/deceased was also taken to Arambag S.D Hospital for treatment because nursing home authorities expressed their inability to treat Dukhiram Naskar. 5 At about 3 pm in the afternoon his brother Dukhiram expired. The witness added that when he tried to rescue Dukhiram, the accused persons abused them in filthy languages and intimidated them by saying that they will take revenge on them. After the death of Dukhiram, he along with neighbours and others visited the police station and submitted a written complaint regarding his brother being murdered. The written complaint was prepared by a third person as per his instruction. Thereafter, the above written complaint was typed which was read over and explained to him and being satisfied he affixed his signature on the written complaint which is marked as (Ext. 1/1).
On further examination in chief, the witness stated that the appellant kicked on the lower abdomen of his brother Dukhiram and Manoranjan Santra assaulted with fists and blows on different parts of the body of the victim. The witness also stated that the inquest was conducted in respect of the dead body which bears his signature. The signature was marked as Ext. 2/1 and the wearing apparels of said Dukhiram identified by him in Court was marked as Mat Ext. 1.
On behalf of the appellant, it was cross-examined regarding the version of introducing the quack doctor namely Koushik doctor in the deposition which was never stated in course of the investigation. The witness was also confronted in respect of the location of the ICDS centre.
PW-2, Pratima Naskar, PW-3, Purnima Naskar stated the incident in the same tune as PW-1 and as such the version is not reiterated. 6
PW-4, Bikash Dolui is a neighbour, who was declared hostile as he denied to have any knowledge regarding the manner into the victim Dukhiram Naskar.
PW-5 is Dr. Saurav Acharya, the post mortem doctor who in his examination-in-chief stated that he found abrasion of both scapular area near both shoulder, rigor mortis was present, brain congested, lungs congested and heart was full. Stomach contained food, greater omentum showed multiple bruise, mesentry was haemorrhagic, wall of small intestine was partly haemorrhagic with multiple bruise. Liver, spleen and both kidneys was congested and bladder was empty and the cause of death was intra abdominal haemorrhage and injury of mesentry and greater omentum but final report was to be given after chemical analysis report is available. He opined in this case the nature of injury is the mesentry causing damage of the blood vessels causing intra abdominal haemorrage. The post mortem report which was prepared and sent by him was marked as Ext. 3.
PW-6 is A.S.I. of Police viz. Prabir Kumar Sing who at the relevant time was attached to Arambagh Police Station. He deposed that on the relevant date he prepared a dead body challan of Dukhiram Naskar in connection with U.D. Case No. 172/2014 dated 28.07.2014. He identified the said dead body challan which is marked as Exhibit-4. He also deposed that he conducted inquest on the dead body of Dukhiram Naskar and prepared the inquest report. The carbon copy of the inquest report which was prepared and signed by him was marked as Exhibit-2.
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PW-7 is Suraj Hazra, Sub-Inspector of Police who was posted at Khanakul Police Station and was the first investigating officer of the case. He deposed that on the basis of written complaint of PW-1, Khanakul Police Station Case No. 477/2014 dated 28.07.2014 was registered for investigation. He submitted that formal FIR was prepared by Sub-Inspector Sumon Roy Chowdhury and it bears his signature. He was acquainted with the handwriting and the signature of the said Sub-Inspector of Police. As such, the formal FIR was marked as Exhibit-5. As he was endorsed with the investigation of the case, he narrated that during investigation, after perusal of the FIR, he visited the place of occurrence, prepared rough sketch map of place of occurrence with index. He identified the said rough sketch map of place of occurrence along with his signature which is marked as Exhibit-6. He also examined the available witnesses and recorded their statement under Section 161 of the Code of Criminal Procedure, arrested both the FIR named accused persons viz. Rabin Santra and Manoranjan Santra. He identified the appellant in court and stated that after arresting both the persons, they were forwarded to the court of the learned Additional Chief Judicial Magistrate, Arambagh. He also collected the post mortem report as well as the police inquest report and injury report from Arambagh Nursing Home. He was thereafter transferred and as such he handed over the case to the Officer-in-Charge, Khanakul Police Station.
PW-8 is Prasanta Ghosh who was second investigating officer of the case. He submitted that he was handed over the case by the Officer-in-Charge, 8 Arambagh Police Station after the first investigating officer was transferred. After taking charge of investigation, he perused the case diary and seized the viscera of the deceased Dukhiram Naskar on 11.09.2014. He identified his signature in the seizure list along with its contents which is marked as Exhibit-7. The viscera was sent to FSL. He submitted that as the previous investigating officer examined the witnesses and recorded their statement under Section 161 of the Code of Criminal Procedure, he did not record the statement of any witness under Section 161 of the Code of Criminal Procedure. He also did not receive the FSL report. As such, he submitted the charge-sheet after consultation with the superior officer under Sections 341/326/304/504/506(2)/34 of the Indian Penal Code against two accused persons being the present appellant and another viz. Manoranjan Santra.
Mr. Amitabha Karmakar, learned advocate appearing for the appellant submitted that there was no reason for delay in lodging the FIR, as according to the prosecution case, the victim was mercilessly assaulted which resulted in the cause of his death. By drawing the attention of the Court to the time period as stated by PW-1, he submitted that on 26.07.2014, the incident occurred between 9 p.m. to 9.30 p.m. However, without any rhyme or reason, the complaint was lodged with the police station on 28.07.2014 after the death of the victim Dukhiram Naskar. According to him, the manner in which the PW-1 Shyamal Naskar explained the incident at the time of submitting the written information with the police authorities, there is substantial improvement when the deposition was made in court. To that effect, learned advocate pointed out 9 that never at the time of submission of the information to the police authorities it was stated that the quack doctor viz. Koushik doctor was brought for treatment while at the time of deposition, the name of this quack doctor surfaced. Further at the time of submission of the information to the police authorities, it was categorically stated that the neighbours were present who also rushed to the spot. However, the police authorities did not examine the neighbours or they were relied witness in trial. As such, the sole neighbour who was cited as a witness having turned hostile, the complicity of the present appellant becomes questionable.
Another issue which has been seriously canvassed by the ld. Advocate for the appellant is that only the post mortem report and the inquest report have been relied upon and none of the treatment sheets were brought in evidence at the instance of the prosecution in order to inspire the confidence as it was assault inflicted at the instance of the appellant and another, which resulted in the death of the victim and it was specifically stated by the prosecution witnesses that the treatment sheets were handed over to the police authorities.
Learned Advocate submitted that the prosecution has failed to prove the case beyond reasonable doubt and, as such, the appellant must be acquitted of the charges.
Mr. Anwar Hossain, learned Advocate for the State resisted the submissions advanced by the appellant and submitted that there is a ring of truth attached to the evidence of the prosecution. The witnesses consistently 10 stated only one version i.e. the appellant and another assaulted the victim/deceased by fists, blows and kicks.
Ld. Advocate for the State has also drawn the attention that injuries were inflicted by way of kicks at the abdominal region as is brought out from the evidence of one of the witnesses. The same, according to the prosecution, has been corroborated in the post mortem report, wherein the post mortem doctor has opined that "intra abdominal hemorrhage and injury of mesentry and greater omentum, but final report to be given after chemical analysis report is available".
The prosecution, therefore, submits that there is no scope for interference in the Judgment and Order of conviction and sentence so passed by the ld. Trial court and, as such, the conviction and sentence so passed by the ld. Trial court is to be upheld.
I have considered the submissions advanced on behalf of the appellant as well as the State and analised the evidence, which included both the medical evidence as well as the deposition of near relations, who had rushed to the spot immediately after they heard hue and cry.
The charges under Sections 304 (II) of the IPC were brought in because of the death of the deceased and the prosecution having brought in materials, thereby attempting to connect that the assault was cause of death of Dukhiram Naskar. However, there are certain flaws which are glaring on the face of the record. The first of such flaw being that no immediate treatment was done, although, the incident happened on 26.07.2014. But, the victim was 11 taken to the nursing home on the next date. Secondly, in the subsequent evidence before the court, it transpires that there was an initial treatment by a quack doctor, namely, Koushik doctor. To that effect, neither the said Koushik doctor (quack doctor) nor his prescriptions were produced, no documents were brought before the court including documents relating to the treatment at the nursing home. Although, a prosecution witness in his evidence, categorically stated that he handed over the treatment papers to the police, who seized the same and he signed the said document as a seizure witness. In fact, no such seizure list is also available in the case records or has been admitted in evidence.
Having considered these aspects of materials being absent, it is very difficult for this Court to come to a conclusion that the assault being inflicted by the appellant and another resulted in the death of the victim, namely, Dukhiram Naskar. That being so, no case under Section 304(II) of the IPC can be said to be conclusively made out and, as such, the appellant is acquitted of the charge under Section 304(II) of the IPC.
However, the abdominal hemorrhage was the cause of the death as was cited by the post mortem doctor and there is consistent version of assault. So far as the issue relating to assault is concerned, majority of the prosecution witnesses have named the appellant and another, who has inflicted the same. Thus, there is no doubt regarding the assault being inflicted and, to that extent, the prosecution has proved the case beyond reasonable doubt. Consequently, the offence under Section 325 of the IPC is established. 12
The records of the case reflects that in course of investigation and trial the present appellant was in custody from 29.07.2014 to 15.12.2014.
Having regard to the fact that the incident occurred ten years ago, I am of the view that the sentence so imposed under Section 325 of the IPC be reduced to the sentence already undergone.
But, having regard to the aggression shown by the appellant, it would be in the fitness of the circumstances to direct the appellant to furnish a good behaviour bond with the ld. ACJM, Arambagh, Hooghly of Rs.10,000/-, which shall be valid for a period of two years from the date of furnishing such bond. In case, the appellant fails to comply with the conditions of good behavior bond, which should be furnished within a period of three weeks from date, the ld. ACJM, Arambagh, Hooghly, would direct the appellant to suffer rest of imprisonment as imposed by the ld. Trial court i.e. one year (which would obviously include setting off the sentence which has been suffered by the appellant as referred to above).
Accordingly, CRA (SB) 143 of 2022 is Partly Allowed.
Pending connected application, if any, is also disposed of. Department is directed to send back the LCR immediately. A copy of the judgment be forwarded to the ld. ACJM, Arambagh immediately for compliance regarding the directions given above.
All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court.
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Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.
(Tirthankar Ghosh, J.)