Calcutta High Court
Ramesh Dey And Ors. vs State Of West Bengal on 16 May, 2007
Equivalent citations: 2007(3)CHN775, 2007 CRI. L. J. 3104, (2007) 55 ALLINDCAS 918 (CAL), 2007 (55) ALLINDCAS 918, (2007) 3 CAL HN 775
Author: Kalidas Mukherjee
Bench: Kalidas Mukherjee
JUDGMENT Kalidas Mukherjee, J.
1. This appeal is directed against the judgment of conviction and sentence passed by the learned Additional Sessions Judge, 2nd Court, Bankura in Sessions Trial No. 9(8) of 2001 corresponding to Sessions Case No. 11(3) of 2000 convicting the appellants viz. Ramesh Dey, Mrityunjay Digar and Jayanta Santra Under Section 302/34 and sentencing them to suffer imprisonment for life and to pay a fine of Rs. 5,000/- each in default S.I. for six months. The appellants have also been convicted Under Section 324/34 IPC and sentenced to suffer R.I. for one year and to pay a fine of Rs. 1,000/- each in default to suffer S.I. for two months with the direction that both the sentence shall run concurrently.
One Tarapada Mondal lodged complaint with the Kotalpur P.S. alleging that on 27.05.97 at about 9.00 p.m. his sister Kumari Padma Mondal, his mother Sudhamayee Mondal and his aunt Sujata Dey with her little son Suman Dey aged about 4 years sat in the courtyard of the house. At that time the informant heard shout from the courtyard and after reaching the spot he found that his sister Padma Mondal and his mother Sudhamayee were lying on the ground in restless condition. Sujata Dey, the informant's aunt, told him that in order to kill Padma, the accused Ramesh Dey brought a glass full of acid and hurled it at Padma and ran away. As a result, Padma, informant's mother and aunt and the little boy sustained injury. They were admitted to Arambag-Sub-Divisional Hospital. It has also been stated in the FIR that before this incident Ramesh Dey on another occasion hurled acid at Padma.
After receipt of the complaint, the P.S. case bearing No. 20 of 1997 dated 28.05.97 was started Under Section 326/307 IPC victim Padma died in the hospital after six days.
After completion of investigation the chargesheet was submitted. The learned Trial Judge after considering the materials on record was pleased to frame the charges under Sections 302/34 and 326/34 IPC against the accused persons to which they pleaded not guilty and claimed for trial.
2. In this case the prosecution has examined as many as 16 P.Ws. including the informant, the neighbouring witnesses, the brother of the deceased, the sister of the deceased, the injured Sudhamayee Mondal i.e. the mother of the deceased, the autopsy surgeon and the I.O.
3. The learned Trial Judge upon consideration of the evidence on record was pleased to pass the impugned judgment of conviction and sentence holding that it was proved beyond any manner of doubt that the injured persons sustained acid burn injuries and that the injuries were grievous in nature. The learned Trial Judge observed that from the evidence it was proved that on earlier occasion Ramesh teased Padma in a very uncouth manner for which Padma Mondal slapped and assaulted Ramesh. It has also been observed by the learned Trial Judge that from the evidence of witnesses it was proved that Ramesh expressed his desire to marry Padma thought the accused person was aware that he was married. The learned Trial Judge also observed that the accused persons jointly with the common intention proceeded through the road which was situated by the side of the P.O. and getting the scope of having no boundary wall for fencing within the P.O., they got such change to go through that P.O. in such a mood as if, they were proceeding to the marriage party of Sambhu Digar and taking such scope Ramesh threw the acid aiming at Padma and, as a result, it touched the bodies of all the persons who were present there. It was observed that from the evidence it was proved that Jayanta Santra was aware of the fact about the throwing of acid and Mrityunjay was also present in that assembly. The learned Trial Judge observed that on overall assessment of the evidence on record there was no ground to disbelieve the evidence of the P.W.1, P.W.2, P.W.3, P.W.8, P.W.9, P.W.10, P.W.11 and P.W.12. The learned Trial Judge after considering all the materials on record found no difficulty in passing the impugned judgment of conviction and sentence.
4. Mr. Sekhar Basu has appeared on behalf of the appellants. Mr. Basu submits that in the FIR the name of Ramesh only was mentioned and there is no mention of the name of the other accused persons therein. Mr. Basu contends that Padma survived for six days and no attempt was made by the I.O. for recording the dying declaration of the victim. Mr. Basu contends that there is no evidence of any prior acquaintance between Ramesh and other accused persons. It is contended that the disclosure of the names by P.W.6 Sujata Dey, i.s doubtful, inasmuch as, Sujata and the victim were sitting face to face and having regard to the injuries sustained by the deceased in her front side, as appearing from medical evidence, it was not at all possible for Sujata to see who were the assailants. Mr. Basu further contends that at the time of the alleged occurrence darkness prevailed and there is no evidence to show as to how the victim and other injured persons could identify Ramesh and other accused persons.
Mr. Basu contends that there is no evidence to prove the sharing of the common intention by Mrityunjay and Jayanta with accused Ramesh in the alleged act of throwing acid on Padma. Mr. Basu has drawn our attention to the discrepancies in the evidence of the P.Ws. and contradictions with the I.O. It is contended that the hostile disposition of Ramesh was not disclosed to the I.O. Mr. Basu contends that in view of the things which were not stated during investigation and what has been stated before the Court during trial, it only speaks of embellishment or fabrication in the prosecution case. Mr. Basu contends that there is medical evidence to the effect that the victim sustained acid burn injuries in her front portion including the breast and there is discrepancy between the ocular version and the medical evidence. Mr. Basu finally contends that the learned Trial Court was not justified in recording the order of conviction and sentence. Mr. Basu has submitted the written notes of argument.
5. Mr. Asimesh Goswami appearing for the State respondent submits that Ramesh and two others hurled acid as it appears from the evidence of the P.Ws. Mr. Goswami contends that the accused Ramesh harboured some feeling of taking revenge on the victim, It is contended that previously Ramesh made an abortive attempt to throw acid on Padma although no case or G.D. was lodged to that effect. It is contended that there is no reason for false implication of the accused person in this case and from the evidence on record it is clear that Mrityunjay and Jayanta shared the common intention with the accused Ramesh. Mr. Goswami contends that the ocular version finds corroboration from the medical evidence and the learned Trial Court was justified in passing the impugned judgment of conviction and sentence and there is no ground to interfere with the same.
6. From the FIR it appears that the informant came to the P.O. and found that all the injured were lying there in restless condition and from Sujata he came to learn about the name of the assailants. In the FIR only the name of Ramesh has been disclosed. In the evidence of P.W.1, P.W.2, P.W.3 (informant), P.W.5, P.W.6 and P.W.12, the name of other two accused persons viz. Mrityunjay and Jayanta appeared. It is in their evidence that these three persons while passing along the village road in connection with a marriage ceremony suddenly appeared and after throwing acid ran away. P.W. 6 and P.W. 7 are the injured. P.W. 6 Sujata who disclosed the name of the assailants to P.W. 3 has stated that on 27.05.1997 at about 8.30/9 P.M. Padma, Sudhamayee and hereself with her son in her lap sat on the mattress in the courtyard and suddenly she saw Ramesh, Mrityunjay and Jayanta to proceed along the village road situated just adjacent to the courtyard in connection with a marriage ceremony of the cousin sister of accused Mrityunjay. It is in her evidence that suddenly the accused persons threw acid aiming at them and fled away. It is also in her evidence that she and Padma raised alarm saying that acid has been thrown upon them. She has stated that severe burn injuries were sustained by them on the face, hands and legs. She has stated further that on hearing the alarm, Nemai Dey, Shyamapada, Prasanta and others appeared and as per the advice of the local doctor they were sent to hospital. Nemai, Shyamapada and Prasanta have been examined as P. W. 2 P.W.1 and P.W.4 respectively. It is in the evidence of P.W. 1 and P. W. 2 that they came to learn about the name of the assailants from Sujata (P.W.6). But P.W. 4 was not examined by the prosecution on the ground that he was gained over. P.W.12 is the sister of the deceased who was reading inside the house at the material time and after hearing the shout, rushed to the place of occurrence. It is in her evidence that after reaching the P.O. she came to learn from Padma (deceased), Sujata and Sudhamayee that acid was thrown aiming at them and they sustained burn injuries. It is also in her evidence that Ramesh Jayanta and Mrityunjay while proceeding, threw acid aiming at them and fled away. So from the evidence it is found that the other persons who came to the P.O. immediately after the incident, saw the conditions of the injured persons and came to learn about the names of the assailants. It is also found that the injured persons narrated the incident to the other witnesses. The autopsy surgeon P.W. 14 examined the deadbody of Padma and found:
extensive acid burn over neck, chest, right alna both breasts up to abdomen upto the level of symphysis pubis scatteredly over both legs, knees, back spared, hair and scalp intact. I also found that there was a deep burn over the anterior and lateral chest wall ribs and cartilages, which was found on dissection. Larynx and trachea was intact but there were pulmonary oedema with hemorrhagic fluids on both sides of lungs. There was a small amount of bile coloured fluid within the stomach.
Uterus was empty and organs of generation was healthy.
In my opinion cause of death was due to shock from massive ante-mortem, homicidal acid burn injuries as stated above.
7. P.W.15 another doctor examined Sudhamayee Mondal and found the following injuries:
Scattered areas of acid burn seen on right forearm, right breast, chin, left arm and back of right chest. Total area of burnt 15%. He also examined Sujata Dey and found the following injury:
Scattered areas of acid burn on face, left arm, right thigh, right arm and forearm. Total area of burnt 25% Suman Dey, son of Sujata was also examined by the doctor and the following injuries were found: Scattered areas of acid burn around left shoulder, back of left chest, left thigh. Total area of burnt 11%.
The doctor has opined that those were acid burn injuries. So from the evidence of the P.Ws. and the evidence of the doctor and the autopsy surgeon we find corroboration of the ocular version from the medical evidence.
8. Regarding previous abortive attempt of accused Ramesh in throwing acid upon Padma, it is in the evidence of P. W. 1 that on one occasion acid was thrown aiming at Padma while she was inside the room, but, anyhow she was saved at that time and Ramesh was suspected of throwing such acid on that occasion. P.W.3 the informant has stated that previously on one occasion Ramesh threw acid aiming at Padma while Padma was lying in her bed in one room of the house, but, anyhow she was saved at that time. It is also in his evidence that the motive behind committing such type of incident by the accused Ramesh was that Ramesh expressed his desire to marry Padma, but, Padma refused his proposal on the ground that accused Ramesh was married. He has also stated that once accused Ramesh wrote a letter to Padma for which Padma assaulted Ramesh. From the exhibit list it appears that one phial made of glass and one plastic glass from which there was smell of Carbolic Acid as alleged, have been seized vide Exhibit 1(b). The letter allegedly written by Ramesh to Padma have also been seized vide Exhibit 8(b). It is in the evidence of P.W.5 that about 7/8 days prior to the incident Ramesh stated to her in her house that he wanted to marry Padma, but, the family members of Padma refused to accept the proposal of Ramesh and for that reason Ramesh expressed before her that he will kill Padma, if she refused to marry him.
9. It is in the evidence of P.W. 1 that previously accused Ramesh used to work in their house and while he was working he picked up quarrel with Padma for which Padma assaulted him. Accused Ramesh in his statement Under Section 313 Cr. PC has stated that he previously used to work in the house of Shyampada Mondal (P.W.1) as a day labourer. Under the circumstances, the possibility of false implication can reasonably and safely be ruled out.
10. P.W.5 Bimala Dey is the mother-in-law of P.W.6. P.W.6 has also stated that her mother-in-law reported to her that about 6/7 days ago, prior to the date of incident, Padma might be killed by Ramesh, if Padma and her family members refused to permit Ramesh to marry Padma.
11. P.W.12 the sister of the deceased has stated that prior to this incident accused Ramesh and Mrityunjay used to tease Padma in several manner. On this point there was no cross-examination of P.W.12 from the defence. From the evidence of the P.Ws. as discussed above, it is clear that Ramesh had a grudge against Padma for her refusal to marry him. It is true that regarding the previous incident of throwing acid upon Padma no G.D or FIR was lodged. But from the evidence of the P.Ws. it is clear that the accused had ill feeling or grudge from which the motive behind the alleged incident can easily be discerned.
12. As regards the involvement of the two other accused persons viz. Jayanta and Mrityunjay, it is clear that in the FIR there is mention of the name of Ramesh only as the assailant. It is only from the evidence of P.Ws. during trial it transpires that two other persons viz. Jayanta and Mrityunjay were also allegedly present and they took part in the act of throwing acid upon Padma and the other injured persons. Now the question arises whether the two other persons can be held guilty with the aid of Section 34 of the IPC. P.W.3 i.e. the informant firstly came to learn about the name of the assailant from Sujata and thereafter he lodged the FIR disclosing the name of Ramesh only. The absence of the name of other persons in the FIR is very significant in this regard. Mere presence at the place of occurrence would not, ipso facto, attract the provision of Section 34 of the IPC. There is no convincing evidence on the point of the actual participation of the other two accused viz. Mrityunjay and Jayanta. Moreover, there is no evidence to show that there was prior concert or meeting of minds sharing the common intention with Ramesh for throwing acid upon Padma and others. Under such circumstances, we are of the considered view that the allegation of sharing of common intention by other two accused persons with the aid of Section 34 of the IPC would be farfetched. We are, therefore, of the considered view that the appellant Mrityunjay Digar and Jayanta cannot be held guilty for the offence under Sections 302/34 and 324/34 of the IPC.
13. As regards the appellant Ramesh, we find that there is consistent and convincing evidence regarding the commission of offence by Ramesh. Mere omission in making statement to I.O. on some points, would not cast any shadow of doubt on the veracity of the testimony of the P.Ws. examined in this case. Nothing has been elicited in the cross-examination of the P.Ws. so as to impeach the veracity of their testimony.
14. As regards the question of identification of the accused in the darkness of night, we find that accused Ramesh was a known person to the injured witnesses and this point does not cast any doubt on the veracity of the prosecution case. Considering the entire evidence on record and having regard to the submissions of Mr. Basu and Mr. Goswami, we are of the considered view that the learned Trial Judge was justified in recording the order of conviction and sentence so far as the appellant Ramesh Dey is concerned.
15. In the result, the appeal is allowed in part. The order of conviction and sentence recorded by the learned Trial Court as against appellant Ramesh Dey is confirmed. But the order of conviction and sentence recorded by the learned Trial Court as against appellants Mrityunjay and Jayanta is set aside. The appellants Mrityunjay Digar and Jayanta Santra are acquitted and released from their respective bail bonds.
16. Let a copy of this order along with the L.C.R. be sent to the learned Trial Court immediately.
17. Urgent xerox certified copy, if applied for, be handed over to the parties as early as possible.
Alok Kumar Basu, J.
18. I agree.