Calcutta High Court (Appellete Side)
Barun Ghosh vs State Of West Bengal on 2 April, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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Item no. 5
Aloke/sg
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 368 of 2010
And
C.R.A. 137 of 2011
BARUN GHOSH
Versus
STATE OF WEST BENGAL
Judgment on : 02.04.2018
Joymalya Bagchi, J.:
In re : CRA 137 of 2011 C.R.A. 137 of 2011 was subsequently filed by the appellant against the self-same judgment and order which was already under appeal in C.R.A. 368 of 2010 at his behest.
In view of the aforesaid fact, the subsequent appeal being C.R.A. 137 of 2011 is dismissed as not maintainable.
In re : CRA 368 of 2010 The appellant is in jail since December, 2007. In view of the protracted period of detention suffered by the appellant, I have taken up the matter for hearing although the parties are un-represented. The appellant was convicted for 2 commission of offence punishable under Sections 326/307/506 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life for the offence under Section 307 of the Indian Penal Code. No separate sentence was imposed in respect of the other offences.
The prosecution case as alleged against the appellant is to the effect that on 05.08.2007 the appellant assaulted the victim Bikash Ghosh with a 'daa(katari)' with the intention to kill him at the Tea stall of one Ratan Mallick at Panpur More. Initially the appellant demanded Rs.500/- from Bikash and when the latter refused to pay, the appellant threatened him that he would kill him in the manner as he had killed his father. Thereafter, the appellant tried to strike a blow on the head of the victim with his 'daa'. However, the victim in order to save himself raised his hands and consequentially suffered injuries on his hands and back. Local people shifted the victim to Naihati Hospital and thereafter to Kalyani JNM Hospital for treatment. Investigation was set into motion on the written complaint of Bishakha Ghosh (P.W. 2), the mother of the victim and in conclusion of investigation charge-sheet was filed under Sections 326/307/506 of the Indian Penal Code. Case was committed to the Court of Sessions and transferred to the Court of the Additional District & Sessions Judge, Fast Track Court No. 5, Barrackpore, North 24 Parganas for trial and disposal. Charges were framed under Sections 326/307/506 of the Indian Penal Code.
Prosecution examined 14 witnesses and exhibited a number of documents to prove its case. The defence of the appellant is one of innocence and false implication.
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In conclusion of trial, the trial Judge by judgment and order dated 30.03.2010 convicted and sentenced the appellant as aforesaid.
I have perused the evidence on record.
P.W. 7, Bikash Ghosh is the injured witness. He deposed that he had come to the Tea stall of Ratan Mallick to take tea on 05.08.2017 at about 7.15 a.m. At that time while he was drinking tea the appellant suddenly appeared and demanded Rs.500/- from him. The appellant threatened that if the money was not paid he would meet the same fate as his father who had been murdered by the appellant. The witness refused to part with the money and thereupon the appellant started assaulting him with a 'daa'. The appellant tried to kill him by giving a blow on his head with the 'daa'. The witness tried to resist by raising hands and sustained bleeding injuries on both his hands and back. P.W. 5, Pratick Pan and P.W. 6, Isrile Khan shifted him to Naihati Hospital and thereafter to Kalyani JNM Hospital. He was admitted in the hospital. He identified the weapon of the offence as well as his blood stained vest in Court. He also deposed that the appellant had killed his father earlier.
The evidence of the injured witness is corroborated by P.W. 4, Ratan Mallick. Ratan stated that on 05.08.2007 around 7.15 to 7.20 a.m. Bikash Ghosh came to his stall to take tea. At that time appellant came to his stall and demanded Rs.500/- from Bikash. Bikash refused to give the money and an altercation ensued. The appellant took out a 'daa' and started assaulting Bikash. 4 The appellant tried to hit Bikash on his head. In order to save himself, Bikash raised his hands and sustained injuries on both his hands. He raised alarm and people gathered at the place. The appellant was caught from behind by the local people. Isrile and Pratik shifted the injured to Naihati Hospital and thereafter to Kalyani Hospital. P.W. 5, Pratick Pan and P.W. 6 Isrile Khan have corroborated the evidence of the victim Bikash (P.W. 7) and Ratan (P.W. 6), as aforesaid.
P.W. 3 a local fish vendor and P.W. 8 another tea stall owner of Panpur market arrived at the place of occurrence immediately after the incident and found the victim in bleeding condition. The victim narrated to them that he was assaulted by the appellant with a 'daa'. P.W. 3 was also a witness to the seizure of the weapon of offence by the police and signed on the seizure list marked as Exbt. 3. He identified the 'daa' in Court. Similarly, P.W. 14 was a witness to the seizure blood stained vest of the victim in the hospital.
P.W. 2 is the mother of the victim and de facto complainant in the instant case. She heard the incident from para people and came to Naihati General Hospital to meet his son. Bikash narrated the incident to her and accordingly she lodged written complaint which was scribed by Gour Karmakar, P.W. 1.
P.W. 11, Dr. Tushar Kanti Ghosh was attached to Naihati State General Hospital at the time of occurrence and he treated the victim. On examination he found the following injuries :
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"incised wounds, dorsal aspect of right wrist joint-2½' X ½' skin, bones and tendon. Medium aspect of the right forearm 2½' X ½'. Dorsal aspect of the right middle finger just below the metacarpo phalyngeal joint ½' X ½' skin, soft tissue and bones. Outer aspect of left upper arm 2'X ½'. Left elbow joint ½'X ½'. Right forearm ½'X ¼'. Left parimer aspect oblique wound 2'X ¼'.
Injuries were caused by sharp cutting weapon, grievous wound."
He proved the injury report marked as Exbt. 6. He deposed that the patient was referred to Kalyani JNM Hospital for better treatment.
P.W. 10, Anup Kumar Das is an employee of Naihati State General Hospital. He produced the injury report marked as Exbt. 5.
P.W. 12, S.I. Biswanath Das received the written complaint from P.W. 2, Bishakha Ghosh and drew up formal F.I.R. marked as Exbt.8.
P.W. 13 is the investigating office in the instant case. He visited the place of occurrence and prepared draft sketch map with index marked as Exbt. 9. He examined witnesses. He seized the weapon of offence as well as blood stained wearing apparels of the injured under seizure lists. He arrested the accused. He filed charge-sheet. He further deposed that during investigation he learnt that the appellant had murdered the father of the victim and a criminal case being Jagatdal P.S. Case No. 178 dated 12,05.2004 under Section 302 of the Indian Penal Code had been registered for investigation.
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From the aforesaid evidence on record particularly that of the victim, P.W. 7 and other eye witnesses like P.Ws. 4, 5 and 6, I have no doubt in my mind that the grievous injuries on the victim were caused by the appellant. Exhortation of the appellant at the time of assault and his intention to hit the victim on the head as transpiring from the evidence of the victim and other witnesses also leaves no doubt in my mind that the intention of the appellant was to cause death of the victim. Fortunately, the victim survived due to timely intervention of the local people and prompt medical treatment. The evidence of the eye-witnesses are corroborated by the injuries found by the doctor P.W. 11, who treated the victim at the hospital. Hence, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt.
The conviction of the appellant under Sections 326/307/506 of the Indian Penal Code is upheld. Coming to the issue of sentence, I find that the appellant has been sentenced to suffer imprisonment for life which is the maximum sentence which may be awarded for the said crime. No doubt, criminal case had been recorded against the appellant for the murder of the father of the victim, however, it appears from the record that he had been acquitted of the said charge.
In view of the aforesaid fact and the attending facts and circumstances of the instant case, I am of the opinion, that in view of the proportionality of the crime the indeterminate sentence imposed on the appellant may be modified to a determinate one of sufficient length. Accordingly, I modify the sentence imposed 7 on the appellant for the offence punishable under Section 307 of the Indian Penal Code and direct that he shall suffer rigorous imprisonment for 12 years and shall pay fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for one year more.
Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
With the aforesaid modification as to sentence, the appeal is disposed of. Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)