Calcutta High Court (Appellete Side)
Gour Sankar Maity vs State Of West Bengal on 4 May, 2015
Author: Tapash Mookherjee
Bench: Tapash Mookherjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
P R E S E N T:-
The Hon'ble Justice Tapash Mookherjee
C.R.A. No. 692 of 2012
Gour Sankar Maity
Versus
State of West Bengal
For the Appellant :- Mr. Pratik Bhattacharyya, Advocate,
For the State :- Mr. Manjit Singh, Ld. Public Prosecutor,
Mr.Anand Keshari, Advocate,
Mr. Anjan Dutta, Advocate.
Heard on : 09.04.2015 & 10.04.2015
Delivered on: 04.05.2015
Tapash Mookherjee, J:
1.The present criminal appeal is directed against the judgment of conviction and order of sentence dated 26.09.2012 passed by the learned Additional Sessions Judge, Fast Track Court- 1, Haldia, Purba Midnapur in S.T. No. 26/2010 (G.R. Case No. 577/2008). By the aforesaid judgment of conviction and order of sentence learned Trial Court found the appellant guilty of the offence under Section 326 I.P.C. and sentenced the appellant to suffer Rigorous Imprisonment for five years and to pay fine of Rs. 1,000.00 (rupees one thousand only) in default, to suffer Simple Imprisonment for three months more. Being aggrieved by and dissatisfied with such order of conviction and sentence the accused Gour Sankar Maity in the trial has preferred the present appeal.
2. The facts leading to the appeal in short, are as follows:-
3. On 17.07.2008 Smt. Asima Bera, the alleged victim submitted a written complaint to the Court of the learned C.J.M., Purba Midnapur at Tamluk and thereby alleged that in the morning of 24.04.2008 her elder brother Sri Gouri Sankar Maity, the present appellant and his wife Smt. Sumana Maity assaulted her with a sharp 'katari' as she overstayed with her child in her parental home and that due to such assaults she sustained serious injuries on her head as well as on different parts of her body and that, due to the intervention of their father as well as, some local people she was saved. The complainant stated further that after such incident of assaults she had at first gone to the local Hospital from where she had been referred to the Tamluk District Hospital where she was admitted and treated for a long time. She further stated that even after release from the district Hospital she had to undergo treatments by different doctors. As the local Police Station failed to take any action, she was compelled to submit the complaint direct to the Court. The aforesaid complaint was accepted by the Court and referred to the Nandigram Police Station for investigation under Section 156 (3) Cr.P.C. where a case under Section 326/307/34 I.P.C. had been started against the appellant and appellant's wife. And after completion of investigation charge-sheet under Section 326/307/34 I.P.C. had been submitted in the case against the appellant and appellant's wife. The case was thereafter committed to the Court of Sessions Judge and ultimately the case was transferred to the Court of learned Additional District and Sessions Judge, Fast Track Court-1, Haldia, for trial.
4. Considering the materials collected during investigation a charge under Section 307/34 I.P.C. had been framed against both the accused persons in the case.
5. Prosecution examined as many as eleven witnesses in the case and produced some documentary evidence as well. Plea of innocence was the defence case in general and in addition, the defence took up a specific case in their defence to the effect that the victim sustained injuries on the day of the occurrence due to fall on a stack of brick bats. Defence had not tendered any evidence whatsoever.
6. Considering the evidence thus produced, learned Trial Court found the appellant guilty of the offence under Section 326 I.P.C., convicted the appellant accordingly and sentenced the appellant to suffer Rigorous Imprisonment for five years and to pay fine of Rs. 1,000.00 (rupees one thousand only) in default, to suffer Simple Imprisonment for three months more. Learned Trial Court found the other accused, i. e., the appellant's wife not guilty of the charge framed against her and acquitted her accordingly. Hence, the appeal against the aforesaid judgment of conviction and order of sentence.
7. Prosecution case was based on the oral evidence of P.W.-1 to P.W.-7 with support from the other witnesses who were doctors and police officers involved in the investigation of the case.
8. Smt. Ashima Bera (P.W.-1) is the alleged victim. The appellant is the elder brother of P.W.- 1 and Sri Satyaranjan Maity (P.W.-
2) was their father. Tapas Das (P.W.-3) was a local person and he did not claim to have witnessed the incident of assault. Sahadeb Bera (P.W.-4) is the brother-in-law of P.W.-1. He did not also claim to have witnessed the incidents of assault. Dr. Amalendu Bera (P.W.-5) was not also a direct witness to the incident of assault. Sri Joydeb Bera (P.W.-6) was the victim's husband. However, he was not present in the village on the day of the incident. S.I. Kashinath Chowdhury (P.W.-7) registered the case at Nandigram P.S. Dr. Dhiraj Kumar Patra (P.W.-8) examined the victim sometimes after the day of the incident. S.I. Kabi Ranjan Singha (P.W.-9) investigated the case in part. S.I. Kamrul Zaman (P.W.-10) completed the investigation and submitted charge-sheet. Dr. Saibal Maity (P.W.-11) treated the victim on the day of the incident, at Tamluk District Hospital.
9. Mr. Bhattacharyya appearing for the appellant argued that the oral evidence of P.W.-1 to P.W.-6 do not match with the medical evidence and as such prosecution's case is not proved. He further argued that the contents of the F.I.R. has not been proved in the case and the delay behind the F.I.R. has not been satisfactorily explained, place of occurrence has not been firmly established and the persons living close to the place of occurrence have not been examined and all those omissions raise serious doubts in the prosecution's case. Mr. Bhattacharyya pointed out some faults in the investigation and raised some other points as well, which would be mentioned latter. It was also a further contention of Mr. Bhattacharyya that learned Trial Court committed gross error in law by not considering the specific defence case that the victim sustained injuries due to fall on a stack of brick bats, which has been proved by the defence. Although, a huge number of reported decisions have been mentioned in the Memo of appeal but none of those decisions has been cited and relied upon by Mr. Bhattacharyya during his argument.
10. On the other hand, Mr. Singh, learned Public Prosecutor, argued that the evidence of the two eye- witnesses, i. e., P.W.- 1 and P.W.- 2 being corroborated by the medical evidence are sufficient to prove the guilt of the appellant. Mr. Singh, admitted that there are some exaggerations in the description of the injuries given by the victim which is very natural and the latches in the investigation pointed out by Mr. Bhattacharyya are on some minor points and those are not fatal for the prosecution. Mr. Singh also referred to a decision of the Apex Court reported in 1989 CRI. L. J. 88 (1) State of U.P.- versus- Anil Singh.
11. As mentioned earlier P.W.-1, the victim and P.W.-2, i. e., the father of both the victim and the appellant are admittedly the main witnesses for the prosecution.
12. P.W.- 1 stated that on the day of the occurrence at about 5.30 a.m. the appellant and the appellant's wife challenged her long stay in their father's house and asked her to leave the house immediately, and when she refused to carry out such command due to illness of her child the appellant with a 'Katari' chased her, due to which she started running through the road lying at the East of her father's house and during such chase the appellant tripped because of which she fell down on the ground and thereafter the appellant assaulted with the 'Katari' on her neck, left hand, back of her head and other parts of her body as well. She stated further that hearing her alarm her father as well as, some pedestrians came to the P.O. and because of their protest the appellant had left the place. P.W.- 1 stated further that after the assault she was taken at first to an X-ray Clinic and thereafter to the Nandigram Hospital from where she was referred to the Tamluk Hospital where she had been treated and admitted for about 15 days. She also stated that from Tamluk District Hospital she was referred to the Medical College and Hospital at Calcutta but she had not ultimately gone there and instead, she continued her treatment in a Nursing home under Dr. D.K. Patra at Tamluk and subsequently she had also gone to a Hospital at Vellor for further treatment.
13. P.W.-2, the father of the victim and the appellant, as well, stated in his evidence that in the morning of the incident while he was returning home after his usual morning walk he suddenly heard a cry after which he saw his son, i. e., the appellant assaulting his daughter with a 'Karati' on the road and because of protest by him the appellant along with his wife fled away from the place. He stated further that he found profuse bleeding on the body of his daughter due to such assault and that he took his daughter to a local Nursing home from where he took his daughter to Nandigram P.H.C. and from there to the Tamluk District Hospital. P.W.-2 also stated that his daughter was referred to Hospital at Calcutta from Tamluk District Hospital but ultimately instead of going to Calcutta his daughter was treated in a private Nursing home at Tamluk and thereafter his daughter was also treated in a Hospital at Vellor.
14. P.W.-3, P.W.-4 and P.W.-5 may not be the eye-witnesses. But all of them stated that in the morning of the incident they found P.W.-1 lying on the road with bleeding injuries.
15. According to P.W.-1 and P.W.-2, after the incident, P.W.-1 was at first taken to 'Monalisha X-ray Clinic' from where she was referred to the Nandigram Hospital and from there she was again referred to the Tamluk District Hospital. But no report from those clinic and Hospital has been produced. P.W.-2 stated that at Monalisha Nursing home one injection was only given to her daughter and thereafter they were asked to take her daughter to some other place. 'Monalisha' was an X-ray Clinic as stated by P.W.-1. So, there is no question of issuing an injury report from there. Similarly, it is not found from the record that any treatment was given to P.W.-1 at Nandigram Hospital. So, issuance of any injury report from there also does not arise.
16. Exhibit-6 and 7 are some medical papers issued from Purba Midnapur District Hospital. From those medical papers, as well as, from the evidence of Dr. Saibal Maity (P.W.-11) it is proved that on 24.04.2008, i. e., on the day of the incident P.W.-1 was admitted in Tamluk Hospital with injuries on head and fracture of fifth Metacarpal bone of left hand. It is true that Dr. Maity in his evidence stated that there was a history of assault and the name of the assailant has not been stated by P.W.-1 in the Hospital. But Dr. Maity stated that the patient was semi-conscious. Moreover, it is not mandatory that in a case of assault the victim must name the assailant and describe the weapon of assault before the doctor. So, omission to name the assailant or to describe the weapon of assault is not fatal for the prosecution in the case. It should be noted here that P.W.- 11 was examined at the end and he was the last witness for the prosecution. Trial Court allowed such prayer of prosecution by recording justification in order No. 37 dated 14.06.2012. Mr. Bhattacharyya has criticized the procedure followed. Apparently I find nothing wrong in the procedure. Had the defence been prejudiced, they could have prayed for recall of any witness examined earlier to P.W.-11. The defence did not follow that course. So, they cannot now claim to have been prejudiced.
17. According to P.W.-1 she had been hit on different parts of her body. But P.W.-11 found two injuries only on her body and according to Mr. Bhattacharyya this is a serious anomaly in the version of P.W.-1 regarding the issue of assaults. P.W.-1 was discharged from Tamluk Hospital on 09.05.2008 as found from the evidence of P.W.-11. P.W.-1 stated that after discharge from Tamluk Hospital she was treated by Dr. D.K. Patra at Tamluk. Dr. D.K. Patra (P.W.-8) in his evidence stated that on 09.05.2008 he examined and treated P.W.-1 in his private clinic. He has proved also his prescription and report which has been marked Exhibit-3. Dr. Patra in his evidence stated that he found some 'healed up' scar at right shoulder, infected wound on dorsal aspect of joint left index and other multiple injuries as well. It is true that some of those injuries were in the process of healing up. But as mentioned above, P.W.-1 was treated by Dr. Patra on the very day of her discharge from Tamluk Hospital. So, those injuries can be easily related with the injuries mentioned by P.W.-1 during her evidence. Be that as it may, there may be exaggerations in the version of P.W.-1 regarding the number of blows she received and the injuries sustained by her on the day of the incident. But such an exaggeration is not unusual as held by the Hon'ble Apex Court in the decision reported in 1989 CRI. L. J. 88 (1) (supra) cited by Mr. Singh.
18. Mr. Bhattacharyya raised a point as to how the medical documents produced in the case had been procured. P.W.- 9 who investigated the case in part stated in his evidence that he himself had not collected any medical documents from any doctor or Hospital and that he collected the injury reports from P.W.-1 through a seizure list which has been marked Exhibit-4. P.W.-10 who completed the investigation stated that he collected injury reports from District Hospital. Those medical documents of Tamluk District Hospital collected by him had been at first marked Exhibit 'Y' for identification and subsequently on being properly proved marked Exhibit- 7. The case was started on the basis of a complaint submitted by P.W.-1 in the Court. So, there is nothing wrong if the complainant, i. e., P.W.-1 on her own initiative collected some of her medical documents.
19. From the evidence discussed above it is proved that on 24.04.2008, P.W.-1 sustained injuries in her person. The appellant, cannot dispute the fact also. Because, the defence also admitted in trial that on 28.04.2008, P.W-1 had sustained injuries in her person. But, the defence during trial, tried to make out an alternate case regarding the cause of such injuries sustained by P.W.- 1. It was the specific case of the defence suggested, that the injuries sustained by P.W-1 was due to fall on a stack of brick bats. Let it be seen now, how far such a suggestion by the defence is probable.
20. In one place of her cross examination P.W.-1 stated that some bricks were kept in the vacant place in front of the house of her father on the date of the incident. But, she clearly denied the suggestion that she sustained injuries due to fall on those brick bats. P.W.-8 during his cross examination stated that if one falls on the stack of bricks incised looking injury may be caused and fracture may also be caused by fall on stack of bricks. Dr. Saibal Maity (P.W.-11) also stated that the injuries he found on the person of P.W-1 may be caused if one falls on the ground. Mr. Bhattacharyya referred to the aforesaid evidence and submitted that the defence case has been proved.
21. What P.W-8 or P.W.-11 stated on the point was nothing but some possibilities only. There is nothing on record to show that in the morning of the day of incident P.W.- 1 had ever fallen on any stack of bricks. That apart, P.W.-1 had definitely no occasion to fall on the stack of bricks near to her father's house in the early hours of the morning, i. e., 5.30 a.m. when the alleged incident of assault took place. It is interesting to note here that the suggestion of the defence on the point was conflicting. In one place it was suggested that P.W.-1 sustained injuries due to fall on the stack of brick bats, while in some other places it was suggested that the injury resulted from fall on the ground. Be that as it may, there were several injuries in different parts of the body of P.W.-1 as discussed earlier. From a simple common sense it can be said that such injuries cannot be caused by one fall. The defence case is, therefore, totally improbable in my considered opinion. P.W.- 11 had not specifically mentioned whether the injuries he found were simple or grievous. However, he had described the injuries in his report from which, the Court could very well ascertain the nature of the injuries according to law.
22. As mentioned earlier the victim, i. e., P.W.-1 stated that she had been assaulted by the appellant. According to her, the reason for such assault by her brother was due to her overstay in her parental home. Such a reason is quite common in our family system, but it is quite unbelievable that for such a simple reason a sister will initiate a false case against her brother. The most important witness is P.W.-2 who happens to be the father of both the appellant and the victim. P.W.- 2 stated that he himself found the appellant assaulting the victim and due to his strong protest the appellant stopped assault and left the place. The defence tried to discredit P.W.-2 by suggesting that he deposed against the appellant to grab the property of the appellant. It is not proved that the appellant has any property on which his father had an eye to grab it by some way, or the other. It is not also understandable as to how the father of the appellant stands to gain by falsely implicating his son. So, the suggestion is absurd and devoid of any legal basis. P.W.-2 is, therefore, a very reliable and dependable witness. It should be further noted that both the P.W.-1 and P.W.- 2 had been cross examined at random by the defence but nothing transpired to disbelieve them especially on the point of assault.
23. It was a contention of Mr. Bhattacharyya that the delay in the F.I.R. has not been justified and the contents of the F.I.R. have not been proved according to law. He further submitted that after the discharge from the Hospital, P.W.-1 had gone to different doctors on different dates as claimed. So, P.W.- 1 could have approached the Court for action long before. If her version to the effect that the Police Station refused to accept the F.I.R. is accepted as true and the prosecution case should fail on such reasons alone.
24. The incident took place on 24.04.2008 and the complaint had been submitted to the Court on 17.07.2008. P.W.-1 stated that on the way to Tamluk District Hospital she along with others went to Nandigram P.S. and made oral complaint before the police. She stated further that before filing the complaint in the Court she went to Vellor Hospital for further treatment. P.W.-2 also stated that on the way to the Hospital they had gone to Nandigram P.S. but he himself had not entered the premises of the P.S. and Sahadeb Bera went inside the P.S. and he was informed by that Sahadeb Bera that a diary had been lodged in the P.S. Sahadeb Bera (P.W.-4) stated that he narrated the incident orally at Nandigram P.S. But he had not stated clearly whether his statement had been diarised or not. It is true that, police should have taken action immediately after receiving such information. But if they had not done so, it was their fault and such inaction on the part of the Police Station, is not uncommon. From the evidence of P.W.- 1 and P.W.- 11 it is found that P.W.-1 was admitted in Tamluk District Hospital from 24.04.2008 to 09.05.2008. It is found from Exhibit-7 that after discharge from Purba Midnapur District Hospital P.W.-1 was referred to the N.R.S.M.C.H., Calcutta, for plastic surgery. From Exhibit-3 it is further found that P.W.-1 was not completely fit and she continued her treatment for a considerable period thereafter. P.W.-1 stated further that she had to go to a Hospital at Vellor for further treatment and after return from Vellor she submitted the complaint in the Court. P.W.-2 also stated he had taken his daughter to Vellor Hospital for further treatment. From Exhibit- 4 it is further found that the document of admission and discharge summery issued by the C.M.C., Vellor had been seized from P.W.-1 by P.W.-9. Those documents of C.M.C., Vellor have been filed also in the Trial Court, although not proved. From all those evidence it is found that P.W.-1 had to undergo continuous treatment at different places prior to her submission of the written complaint in the Court. In such situation she cannot be blamed for causing delay intentionally.
25. Only the signatures of P.W.-1 on her written complaint have been proved by her and marked Exhibit- 1, 1/1 and 1 /
2. The contents of the F.I.R. have not been proved by calling for the scribe as a witness. It is interesting to note that during cross examination, on asking by the defence, P.W.-1 narrated as to what she had stated in her written complaint and the facts thus stated support to what has been stated by her during her evidence.
26. The main importance of the F.I.R. is that it is a check against subsequent, fabrication and manipulation of any fact alleged. In the present case P.W.-1 and P.W.-2 narrated the incident in detail during their evidence and both of them especially P.W.-2 are very much reliable and dependable witness as discussed earlier. So, the want of the version in the written complaint and the delay have no special importance in the case.
27. It was a contention of Mr. Bhattacharyya that the place of occurrence has not been proved, which goes strongly against the prosecution.
28. P.W.-1 stated that being chased by the appellant she started running through the road lying at the East of her father's house and during such run she was intercepted by the appellant due to which she fell on the road and thereafter assaulted. She further stated in cross examination that there was a 'Nayanjulley' at the East of the P.O. Exhibit- 5 is the sketch map of the P.O. with index. In the said sketch map P.O. is shown to be on the Nandigram - Teropekhya bus road near to the parental village of the P.W.-1 and in the charge framed by the Court the P.O. was described in that way. It is true that the 'Nayanjulley' mentioned by P.W.-1 is not shown in the sketch map. But it makes no difference. So, there is no anomaly on the point as argued by Mr. Bhattacharyya.
29. It was also a contention of Mr. Bhattacharyya that the persons accompanying P.W.-1 and P.W.-2 from P.O. to the Tamluk District Hospital especially the village Pradhan, Maniklal Jana have not been examined and the rickshaw van puller who carried P.W.- 1 to Nandigram Hospital and the driver of the Ambulance, in which P.W.-1 was taken to Tamluk District Hospital as well as the villagers living near to the P.O. were all very important witnesses in the case and their absence as witnesses is a serious weakness in the prosecution case. It is never the number but the quality of the witness which is always important. In the present case P.W.-1, the victim as well as her father, i. e., P.W.-2 are considered to be reliable and dependable witnesses. So, the absence of the witnesses mentioned by Mr. Bhattacharyya is of no serious consequence.
30. The failure of the I.Os. to seize the weapon of offence, blood-stained wearing apparels of P.W.-1, if any, the blood- stained earth from the P.0. and some other implicating articles, as well, have been criticised by Mr. Bhattacharyya. It should be kept in mind that investigation of the case started after about three months from the date of the incident. So, seizure of those articles was not important in the present case. In this context it should be mentioned that there are several latches in the investigation in the case. But just for that reason the prosecution case does not fail as a whole.
31. Charge had been framed in the case under Section 307/34 I.P.C. According to the view of the learned Trial Judge, although, the ingredients of the offence under Section 307 I.P.C. have not been proved but the offence under Section 326 I.P.C. has been proved as the victim sustained fracture injuries due to the assault and for such view learned Trial Judge convicted the appellant for the offence under Section 326 I.P.C., although no charge under Section 326 I.P.C. was framed in the case. Such a procedure is sanctioned under Section 222 Cr.P.C. and learned Trial Court rightly followed the provision.
32. According to Mr. Bhattacharyya, examination of the appellant under Section 313 Cr.P.C. was not proper and according to law. But he did not specify as to how the appellant had been prejudiced.
33. So, from the discussion above it is clear that the learned Trial Court had rightly convicted the appellant of the offence under Section 326 I.P.C. and no infirmity or illegality is found in any of the decisions of the learned Trial Court in respect of the point of conviction of the appellant.
34. The appellant and the victim, i. e., P.W.-1 are brother and sister and the incident of assault resulted from a very delicate and touchy family issue. In the circumstances, the period of imprisonment may be reduced by one year as suggested from both the sides. Accordingly, the judgment of conviction of the appellant is affirmed. The appellant is sentenced to suffer Rigorous Imprisonment for four years. The sentence of fine will remain unaltered. The order of sentence is modified as above and the appeal is allowed accordingly.
35. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.
(Tapash Mookherjee. J)