Calcutta High Court (Appellete Side)
Kashed Sahaji & Others vs The State Of West Bengal on 7 August, 2008
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Debiprasad Sengupta
And
The Hon'ble Justice Pranab Kumar Deb
C.R.A. No. 358 of 2003
KASHED SAHAJI & OTHERS
Versus
THE STATE OF WEST BENGAL
For the Appellants : Mr. Subir Ganguly,
For the Respondent / State : Mr. Swapan Kr. Mullick,
Mr. Prabir Chatterjee,
Heard on : 18.04.2008 & 23.04.2008
Judgement on : 7.8.2008
DEBIPRASAD SENGUPTA, J. :
This appeal is directed against the judgment and order of conviction and sentence dated 5.7.2003 and 7.7.2003 passed by the learned Additional Sessions Judge, Third Court at Barasat in Sessions Case No. 12 (7) of 1998 (Sessions Trial No. 6 of December, 1999) thereby convicting the accused appellant no. 1 under Section 302 IPC and sentencing him to suffer rigorous imprisonment for life and a fine of Rs.5,000/-, in default to suffer rigorous imprisonment for a further period of one year and for the offence punishable under Sections 324/34 IPC thereby sentencing him to suffer simple imprisonment for six months and a fine of Rs.500/-, in default to suffer simple imprisonment for a period of 15 days. By the said judgment and order of conviction and sentence the other accused appellant nos. 2 to 5 were sentenced to imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer imprisonment for one year for the offence punishable under Section 302/34 IPC and also for commission of offence punishable under Section 324 IPC read with Section 34 IPC to suffer simple imprisonment for six months and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for 15 days.
The prosecution case, in short, is that on 22.11.1997 at about 18.30 hours the accused Kashed Sahaji and others, named in the FIR, armed with deadly weapons entered into the house of the informant at Bagundi and attacked the complainant and other persons, as a result of which the brother of the informant, Samirul Gazi and his younger sister Saheeda Khatun and his father Bilayat Gazi were seriously injured and they were admitted into the hospital. On the advice of the doctor, the informant made necessary arrangement for transfer of his injured brother Samirul and sister Saheeda to the Sub Divisional Hospital, but on the way to hospital, Samirul Gazi succumbed to his injuries.
On the basis of the information lodged by P.W. 1 a case was registered at Basirhat Police Station and on completion of investigation charge-sheet was submitted under Section 302 IPC against the accused Kashed Sahaji while under Section 302/34 IPC against the other accused persons and under Section 324/34IPC against all the accused persons.
To prove its case, the prosecution examined as many as 20 witnesses while defence examined only one witness.
P. W. 1, Amirul Gazi, was the informant and was also an eyewitness to the incident. It is in his evidence that on 22.11.1997 in between 6.00 P.M. to 6.30 P.M. all the accused persons criminally trespassed into his house and they tried to drag his wife, Meera Bibi. His wife cried out for help, when his younger brother Samirul resisted the accused persons. At that time accused Kashed assaulted Samirul with a spear under the left arm as per direction of accused Sattar, who also told Kashed to finish him. The informant, his father Bilayat Gazi and his sister Saheeda also arrived there and tried to resist the accused persons. Accused Sattar assaulted the father of the informant by a sword under the left arm causing serious bleeding injury. Accused Akbar Sahaji assaulted his sister Saheeda with a ram dao in her right cheek near the ear causing serious bleeding injuries. Accused Bilat Sahaji also assaulted the informant with a lathi. As a result of such assault, the informant, his father, brother and sister received serious bleeding injuries and fell down on the ground. On hearing the shouts the local people assembled there when the accused persons fled away. The injured Samirul Gazi was taken to Basirhat Hospital where the doctor advised to remove him to N.R.S. Hospital at Calcutta. On the way to Calcutta, the condition of Samirul deteriorated and, as such, he was taken to Barasat Hospital where he was declared dead. P.W. 1 was the informant and he corroborated his earlier statement made in the FIR.
P. W. 2, Meera Bibi, deposed that accused Kashed Sahaji gave her a bad proposal and when she raised objection, accused Kashed tried to take her out of the house forcibly. She cried for help and called Samirul Gazi (deceased). When Samirul Gazi tried to resist accused Kashed, Kashed assaulted him with a spear. This witness also corroborated the evidence of P.W. 1 and gave a vivid description of assault by each of the accused persons.
P.W. 3 is also an eyewitness to the incident of assault and she also corroborated the evidence of P.Ws. 1 and 2 in all vital aspects.
P. W. 4, Saheeda Khatun, is the sister of the informant and also an eyewitness to the incident. She found accused Kashed assaulting Samirul with a spear causing severe bleeding injuries. After receiving such injuries Samirul fell down on the ground. This witness, her elder brother and her father tried to resist the accused persons when accused Akbar Sahaji gave a blow of ram dao causing bleeding injuries on her cheek.
P.W. 5, Md. Ramjan Gazi, is also an eyewitness to the incident and he stated that there was an altercation in between accused Kashed and Samirul (deceased). At that time accused Kashed struck Samirul with a spear under the shoulder causing bleeding injuries. Then Samirul fell down on the ground and when other members of the family tried to save Samirul, they were also assaulted by the other accused persons.
P.W. 6 was a rickshaw van puller.
P.W. 10 is the wife of the deceased Samirul Gazi. She deposed that while she was sitting on the varandah with other family members, accused Kashed arrived there with a spear and other accused persons were armed with deadly weapons. The accused persons tried to drag Meera Bibi (P.W.2) out of the house forcibly and when Meera Bibi cried for help, Samirul came out and tried to resist the accused persons. Accused Kashed struck Samirul with a spear on the left side of his chest under the shoulder.
P.W. 11, Abdar Gazi, was also an eyewitness to the incident and he also corroborated the evidence of other eyewitnesses as stated above.
P.W. 12 is also an eyewitness and she gave a vivid description of the incident of assault upon Samirul and other members of the family by the accused persons.
P.W. 14 was the Medical Officer of Basirhat Sub Divisional Hospital and he examined the injured Samirul Gazi, Bilayat Ali Gazi and Saheeda Khatun.
P.W. 15 was the autopsy surgeon, who held post mortem examination over the deadbody of Samirul Gazi. He found profused bleeding from the external wound, which was sharp cutting and penetrating in nature and was situated just below the lateral end of left clavical between 1st and 2nd rib. He also found superficial sharp cutting injury over the vertical column on the back at the level of ten thorasic vertical (1"x 1/6"). He also found punctured wound at the epical region of the left lung including left plura. In his opinion, death was due to shock as a result of profused bleeding from the above injuries.
P.W. 16 was the A.S.I. of Police and he recorded the formal FIR. P.W. 17 and P.W. 18 were the formal witnesses.
P.W. 19 held inquest over the deadbody of the victim. P.W. 20 was the Investigating Officer of the case, who submitted charge-sheet on completion of investigation.
In the present case, conviction was based on the evidence of eyewitnesses corroborated by the medical evidence. P.Ws. 1 to 5, 10, 11 and 12 are the eyewitnesses to the incident. From the evidence of the eyewitnesses, it becomes clear that they corroborated each other in giving the description of assault by the accused persons. All the said witnesses were cross-examined at length, but nothing infirm could be elicited to cast even a slightest doubt on the veracity of those eyewitnesses.
The only point raised by the learned Advocate of the appellants is that the incident took place in course of quarrel and hot altercation between the parties and such incident took place in a heat of passion, which comes under Section 304 of the Indian Penal Code. He further points out that there was only one injury on the body of the victim, which also sufficiently indicates that there was no intention to cause death. In support of his contention, the learned Advocate relies upon a judgment of the Hon'ble Apex Court reported in (2005) 1 Calcutta Cri. L.R. (SC) 524 (Ravi Kumar Vs State of Punjab). From a reading of the said judgment, it appears that considering the factual background, the Hon'ble Apex Court was of the view that it would be appropriate to convict the appellant under Section 304 Part II IPC in stead of Section 302 IPC. We have gone through the said judgment, but in our considered view the facts and circumstances, in which the said judgment was delivered, are quite different from that of the present case. In the said case a quarrel had taken place between the parties over a very trivial matter. The accused picked up a "Dhangu", which was kept there, and gave a blow on the head of the deceased. From a reading of the said judgment, it becomes clear that the incident took place in a heat of passion and in course of sudden quarrel. In the present case, the circumstances are quite different. All the accused appellants came in a body, trespassed into the house of the informant and thereafter assaulted the victim with a spear and when the inmates of the house tried to resist, the other accused persons with deadly weapons in their hands assaulted the inmates of the house causing serious bleeding injuries. It is not a case of sudden quarrel.
The learned Advocate of the accused appellants next relies upon a judgment of the Hon'ble Apex Court reported in (2007) 1 SCC (Cri) 123 (Lachman Singh Vs State of Haryana). From a reading of the said judgment, it appears that conviction of the accused appellant under Section 302 IPC was altered to Section 304 Part-I IPC considering the factual background of the case, which revealed that the occurrence took place in course of sudden quarrel. In our considered view, the said judgment is also not applicable in the facts and circumstances of the present case. In the instant case, it is found on scrutiny of evidence that all the accused persons came in a body with deadly weapons in their hands, entered into the house of the informant, gave bad proposal to P.W. 2 and when they were resisted, the accused appellant no. 1 assaulted the brother of P.W. 1 with a spear on the vital part of his body causing his death. When the other inmates of the house tried to save the victim, Samirul Gazi, all the accused persons assaulted them causing severe bleeding injuries. From the evidence on record, it appears that such incident took place without any provocation and it cannot be said that the incident took place in course of quarrel or hot altercation and in a heat of passion.
The learned Advocate appearing for the State / Respondent submits that in the present case there are number of eyewitnesses, who corroborated each other in vital aspects of the incident of assault by the accused persons. They were also cross-examined at length, but nothing infirm could be elicited from their evidence. It is further submitted by the learned Counsel that the evidence of the eyewitnesses was corroborated by the medical evidence and there is no reason to disbelieve the evidence of eyewitnesses. The learned Advocate relies upon a judgment of the Hon'ble Apex Court reported in (2007) 1 SCC (Cri) 500 (Pulicherla Nagaraju Alias Nagaraja Reddy Vs State of A.P.). The learned Advocate refers to paragraph 29 of the said judgment wherein it was held by the Hon'ble Supreme Court as follows :
"It is for the courts to ensure that the cases of murder punishable under Section 302 are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used ; (ii) whether the weapon was carried by the accused or was picked up from the spot ; (iii) whether the blow is aimed at the vital part of the body ; (iv) the amount of force employed in causing injury ; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight ; (vi) whether the incident occurs by chance or whether there was any premeditation ; (vii) whether there was any prior enmity or whether the deceased was a stranger ; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation ; (ix) whether it was in the heat of passion ; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner ; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases, which may throw light on the question of intention. Be that as it may."
It is submitted by the learned Counsel that in the present case the prosecution has established beyond any shadow of doubt that the appellants criminally trespassed into the house of the informant and caused the death of the victim by inflicting serious injuries. The injuries inflicted by the accused appellants were clearly intended to cause death. The medical evidence established that the injury was sufficient in the ordinary course of nature to cause death. In such circumstances, there is no escape from the conclusion that the offence committed by the appellants is clearly covered by the Clause Thirdly of Section 300 IPC.
We have heard the learned Advocates of the respective parties. We have also scrutinized the entire evidence on record and we find that there is no reason to disbelieve the evidence of the eyewitnesses namely, P.Ws. 1 to 5, 10, 11 and 12. The said witnesses corroborated each other in all vital aspects and in giving a vivid description of the incident. The said witnesses were cross-examined at length, but nothing infirm could be elicited from their evidence to cast any doubt on their veracity. It should not be lost sight of that there was no reason as to why the said witnesses would falsely implicate the accused appellants leaving aside the actual culprit. There was no suggestion even of any motive for such false implication. On scrutiny of evidence, we find the evidence of eyewitnesses acceptable. The totality of evidence of witnesses, especially the evidence of P.Ws. 1 to 5, 10, 11 and 12 coupled with the medical evidence of P.Ws. 14 and 15, makes it clear and sufficient to hold that the accused appellants committed the offence in the manner and at the place as alleged by the prosecution. The prosecution has thus cogently and firmly established the circumstances from which inference of guilt of the accused can be drawn and the circumstances proved by the prosecution are of definite nature unerringly pointing towards the guilt of the accused.
On scrutiny of evidence, we find that all the accused appellants in the group trespassed into the house of the informant and accused Kashed Sahaji gave P.W. 2 (Meera Bibi) an illegal proposal and when she objected to it, said Kashed Sahaji tried to take her out of the house forcibly. When P.W. 2 cried for help, victim Samirul Gazi (deceased) came to her and tried to resist the accused Kashed Sahaji. Kashed assaulted Samirul Gazi first with fists and blows and then as per direction of accused Sattar Sahaji, Kashed struck Samirul with a spear on the left side of his chest under his shoulder. When Samirul fell down on the ground, the other inmates of the house tried to resist the accused appellants, when all of them assaulted the informant, his brother, father and sister causing serious bleeding injuries. From the evidence on record, it becomes clear that all the accused persons came in a body with an intention to kill the victim Samirul Gazi.
The only argument advanced by the learned Advocate of the accused appellants, that the incident took place in course of quarreling and in a heat of passion and as such it comes under the purview of Section 304 and not under Section 302 IPC, is not tenable in our considered view. In the instant case, as it appears from the evidence on record, the appellants had deadly weapons in their hands and they trespassed into the house of the informant and attacked the informant and inmates of the house. The deceased and other members of the family were completely unarmed. There was no provocation, sudden quarrel or fight. There was no indication of any cause for an apprehension on the part of the accused appellants that the deceased may attack him. The stabbing injury with the spear was with great force causing an injury on the vital part of the body sufficient in the ordinary course of nature to cause death. The intention to cause death or intention of causing bodily injury, which is sufficient in the ordinary course of nature to cause death, was made out. The circumstances to bring the case under exception IV to Section 300 do not exist. Considering the entire evidence on record, we agree with the view arrived at by the learned Trial Judge and accordingly we affirm the judgment and order of conviction and sentence as passed by the learned Trial Judge.
The appeal is, accordingly, dismissed.
The accused appellants, who are now in jail custody, shall serve out their sentences.
A copy of this judgement along with LCR may be sent down to the court below immediately.
(DEBIPRASAD SENGUPTA, J.) I agree, (PRANAB KUMAR DEB, J.)