Calcutta High Court (Appellete Side)
Tarani Paul & Another vs The State Of West Bengal on 23 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
1
555
SB/AB
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 8 of 1992
TARANI PAUL & ANOTHER
VS
THE STATE OF WEST BENGAL
AND
C.R.A. 16 of 1992
TAMAL PAUL & ANOTHER
VS
THE STATE OF WEST BENGAL
For the Amicus Curiae : Mr. Anjan Dutta, Advocate
For the State : Mr. N. Ahmed, Advocate
Mr. Mirza Firoj Ahmed Begg, Advocate
Heard on : November 23, 2017
Judgement on : November 23, 2017
Joymalya Bagchi, J. :
The Appeals are directed against the judgement and order dated 28.11.1991 passed by Judge, Special Court-cum-Additional Sessions Judge, Cooch Behar in Sessions Case Nos. 68 of 1988 & 68(A) of 1988 convicting the appellant Tamal Paul for commission of offence punishable under Section 304 Part -I/34 & 325 of Indian Penal Code and appellant Arun Paul for the offence punishable under section 304 Part -I/34 I.P.C. and directing that they shall be released on probation of good behaviour under sections 26(1)(c) of W.B. 2 Children Act, 1959 on execution of bond of Rs.5,000/- each for good behaviour and proper training for the period of three years as the said appellants were juvenile and convicting appellants Tarani Mohan Paul and Tapan Paul for the commission of offence punishable under section 304 Part - I/34 of Indian Penal Code of Criminal Procedure Code and sentence them to suffer rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for a further period of one year.
The prosecution case, as alleged, against the appellants is to the effect that Abani Mohon Paul, P.W. 11 and Tarani Paul are two full brothers. Deceased Dilip Paul was the son of Abani Mohan Paul and deceased Paritosh Paul was his son-in-law. The other appellants namely Tamal Paul and Arun Paul, who were juvenile at the time of commission of offence were sons of Tarani Paul. There was a dispute between Tarani Paul regarding the possession of cultivable land. It is alleged that on 24.12.1986 as Abani Mohan Paul and others had sought to breakdown a new ail constructed by appellants, the latter assaulted Abani Mohan Paul, Dilip Paul and Paritosh Paul with dao, lathi spear and khapar etc and they suffered various injuries on their persons. As a result they were admitted at M.J.N. Hospital Cooch behar where Dilip Paul and Paritosh Paul succumbed to their injuries on 27.12.1986 Abani Mohan Paul was under medical treatment in the hospital for about 12 days. Over the incident, a written complaint was lodged in Mathabanga P.S. Case No. 11/171/86 dated 24.12.1986 under sections 447/341/324/325/326 of Indian Penal Code against the appellants upon the death of the aforesaid Dilip and Paritosh, Section 302 of the Indian Penal Code was also added. In conclusion of investigation, charge-sheet was filed against the appellants and 3 the case was committed to the court of sessions. As appellants Tamal and Arun were found juvenile the case was segregated from the other accused persons and tried one after another by the trial court being S.C. 68A of 1988 & 68 of 1988 respectively. Charges were framed against the appellants under sections 447/302/34/326 of Indian Penal Code. The prosecution examined nineteen witnesses in support of its case and exhibited a number of documents. The appellants pleaded their right to private defence and stated that Tarani was the owner of plot no 899 and Abani & Others had constructed a new ail on the said land. Tarani Paul and Tapan Paul resisted. Under such circumstances, Paritosh Paul tried to assault Tarani with a spade but Tapan Paul obstructed the blow by his hand. Tarani was saved but Tapan was injured. Thereafter, Abani Mohan Paul, Paritosh Paul and Dilip Paul began to assault Tarani Paul with lathi. The accused persons tried to save themselves. There was a scuffling and assaulting between themselves. Both parties were injured. The accused persons were also treated at Mathabanga hospital.
In conclusion of trial, the trial court while accepting that the appellants had exercised their right to private defence, held that they had exceeding such right and had caused the murder of Dilip Paul and Paritosh Paul, as aforesaid. Upon such finding the trial court convicted and sentenced the appellants as aforesaid. The appellants were, however, acquitted of the charge under section 447, of the Indian Penal Code.
Nobody appears on behalf of the appellants.
Mr. Anjan Dutta, learned counsel who ordinarily appears for the State is requested to appear as amicus curiae and assist the court. 4
Mr. Dutta, drew our attention to the evidence of P.W. 11 and submitted that no role has been ascribed to Tarani Paul and Tapan Paul in the assault of the victims. He further argued that the prosecution had failed to explain away the injuries suffered by the accused persons in the course of the transaction and, therefore, the prosecution case ought to be discarded as untrue and conviction of the appellants cannot be sustained.
On the other hand, Mr. Ahmed, learned counsel appearing on behalf of the State submitted that although there is clear evidence that the appellants had trespassed into the land of Abani Mohan Paul and had assaulted the victims results in their death. Ocular evidence is supported by medical evidence. Hence, the appeals are liable to be dismissed.
The most vital witness of the prosecution is P.W. 11, Abani Mohan Paul. He deposed that he had 27/28 bighas of land at Sildanga and used to cultivate 20 bighas himself and the rest was cultivated by Hemendra Paul, Gouranga Paul and his son in law Paritosh Paul (since deceased) and Jatin Paul as Bargadars. Paritosh Paul used to live in a house adjacent to his house. Paritosh Paul cultivated 2 bighas of land under him. The said land was appertaining to Dag No. 899, 952 and 901. The plot no. 899 and plot no. 952 is intervened by one ail. The ail is also used for walking by village people. The said demarcated ail is on the south of the plot no. 899 and north of plot no.
952. Paritosh Paul cultivated .7 dcmls. of land appertaining to plot no. 899 and .49 dcmls. of land appartains to plot no. 952. Dilip Paul is his son and he died in Poush 1393 B.S. On 7th Pous, 1393 in the morning he went to Mathabhanga and returned back in the evening. Paritosh told him that Tarini and his son had raised one 'ail' on plot no.952. Paritosh stated that Tarini and 5 his son had raised a separate 'ail' to the south of the existing 'ail'. On the next day, Dilip and Paritosh went to break the 'ail' raised by Tarini and his son to the south of the existing 'ail'. That land was at a distance of 2½ bighas from his house. They went there to break the 'ail' with spade and plough. He began to plough his land appertaining to plot no.952. When a little portion of the 'ail' was broken, Tarini came there and caught hold of him. Tamal assaulted him with lathi. At that time, Paritish came to his rescue after leaving his spade there. Tapan assaulted Paritosh with a spade on his head causing bleeding injuries. Dilip tried to flee away towards east but Arun assaulted Dilip with lathi. They raised alarm. Dilip fell down and became unconscious. Paritosh also fell down. Tamal assaulted him on his head causing bleeding injuries. Tapan and Arun were also present in the place of occurrence. They were taken to Mathabhanga Hospital. He was unconscious. He regained his sense at Cooch Behar MJN Hospital. Police seized bloodstained genji, dhuti etc. under a seizure list (Exhibit 2/1). Police seized khatians and kabalas from him under a seizure list Exhibit 6. These articles were returned to him under a jimma. He put his signature on the jimmanama.
In cross-examination, he stated that 7 decimals of land appertaining to plot no.899 belonged to him and the rest belonged to other persons.
P.W.12, Promila Pal is the wife of P.W.11. She deposed that on 7th Pous the accused persons raised 'ail' on their land to the south of the existing ail. On the next day, Paritosh, her husband and his son Dilip went to break the 'ail'. As they were breaking the 'ail' with spade, the accused persons came 6 with lathis. Tarini caught hold of Abani from the rear. Tamal assaulted her husband on his head by lathi. Arun also assaulted her son Dilip with lathi. Dilip fell down. Tapan assaulted Paritosh with spade. At that time, she was going to the field with cow dung. Being attracted by alarm local people arrived at the spot. The injured persons were taken to hospital.
In cross-examination she stated that husband and her son were cultivating the land and Tarani was cultivating his land by the side of their land. Paritosh was cutting the 'ail' with spade. Their land and the land of Tarani are at equal level.
P.W.14 is the doctor who was attached to Mathabhanga PHC cum SD Hospital at the time of occurrence. He examined one Dilip Paul and found the following injuries:-
1. Swelling with bruise (4" x 3") over the temporal region including left cheek, left malar area and left infra orbital area of face.
2. Small abrasion over postero medial surface of lower part right forearm.
3. No other body injury was noted.
He examined Paritosh Paul and found the following injuries:-
1. Sharp cutting injury (3") over scalp of right parietal area.
2. Sharp cut (3½) over scalp or middle of vault above the midline. 7
3. Lacerated injury 1" over the upper cleft in between pinal of right ear and scalp.
4. Small abrasion over dorsum of base of right, middle and ring finger and left elbow joint posterior aspect.
5. Swelling with abrasion and tenderness over (a) left deltoid region (b) right elbow joint (c) poster lateral part of lower portion of right arm.
He examined Abani Paul and found the following injuries:-
1. Lacerated injury (a) 1 ½ " over the midline of the anterior frontanatal area in transverse direction. (b) 1" over post lateral part of right parietal area (c) 2" over posterior frontanal area (d) over upper and lest part of occipital area.
2. Swelling with bruise (1" x ") and tenderness over middle side of dorsal aspect of right palm and left scapular area.
P.W.16 is the autopsy surgeon who conducted autopsy over the dead body of Paritosh Pal and found the following injuries:-
1. Oblique lacerated wound 2½" in length situated on the right parietal region.
2. Oblique lacerated wound 1½" in length situated on the vault. Both the injuries at first seen stitched.
3. Defused abrasion on the right arm on its lower third." 8
He also found the following injuries upon conducting autopsy on the deadbody of Dilip Pal:-
1. Defused haematoma on the occipital region.
2. Defused haematoma on the right parietal region.
He opined that the death was due to shock and haemorrhage owing to the above injuries which are ante mortem and homicidal in nature.
On the other hand, the defence has examined D.W.1 who treated one Tapan Pal and Tarani and found the following injuries:-
1. One incised wound 1" x Y 2" x Y 4" on middle part of left middle finger.
2. One incised wound Y2" x Y4" x Y8" on middle part of left right finger.
3. One swelling ½" inch in diameter on left parietal region.
4. One diffused swelling on left shoulder joint.
He also examined Tarini Paul and found the following injuries:-
1. One lacerated would 2" x Y2" x Y4" on right middle cervical.
2. One swelling 1" in diameter on right parietal region.
3. One defused swelling on right scapular region.
He deposed that the injuries were fresh, simple in nature and might have been caused by hard blunt substance.
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The aforesaid evidence on record, therefore, portrays a free fight between the parties resulting in injuries suffered by both the parties. It is unclear as to whether the incident occurred in the land which was being cultivated by P.W.11 or on the adjoining land which was in the possession and was cultivated by Tarini. Hence, the trial judge rightly acquitted the accused persons of the offence punishable under Section 447 of the Indian Penal Code. No appeal has been preferred against such of acquittal.
In this backdrop, I am of the opinion that it would be incorrect to foist the constructive liability on the appellants by invoking Section 34 of the Indian Penal Code and to make them responsible for the acts of accused persons. An analysis of the evidence on record particularly of P.W.11 would show that the assault on the deceased persons, Dilip and Paritosh were caused by the juvenile accuseds namely, Tamal and Arun. There is hardly any role attributed to the other appellants, namely, Tarani and Tapan in the assault of the deceased persons. P.W.11 suggested that Tarini held him from behind. Intention of Tarini to hold P.W.11 may have been to prevent him from causing injuries on his sons and it cannot be said that he shared common intention of murdering the victims.
Hence, I am of the opinion that in the absence of specific overt act attributed to the appellants, namely, Tarini and Tapan, they cannot be said to have shared the common intention of murdering the victims who sustained injuries in the course of a free fight. Hence, though I am inclined to uphold the conviction of the juveniles, namely, Tamal Paul and Arun Paul for commission 10 of offence punishable under Section 304 Part II read with Section 304 of the Indian Penal Code, I feel in the absence of any clear and cogent evidence as to any specific overt role played by the appellants, namely, Tarini Paul and Tapan Pal in the assault of the victims, they are entitled to be acquitted for the charge under Section 304 Part II read with Section 34 of the Indian penal Code.
Appellants in CRA 8 of 1992 namely, Tarini Paul and Tapan Paul are acquitted and shall be discharged from their bail bonds after six months in terms of Section 437A of the Code of Criminal Procedure.
Conviction of appellants in CRA 16 of 1992, namely, Tapan Paul and Arun Paul is upheld.
The appeal being CRA 8 of 1992 is allowed.
The appeal being CRA 16 of 1992 is however, dismissed.
I record my appreciation for the able assistance rendered by Mr. Dutta as amicus curiae to this Court for disposing of the appeals.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. 11
(Joymalya Bagchi, J.) I agree, (Rajarshi Bharadwaj, J.)