Calcutta High Court (Appellete Side)
Balaram Singh vs The State Of West Bengal & Anr on 19 December, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
1
IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
Present:
The Hon'ble Mr. Justice Shivakant Prasad
CRA No. 634 of 2014
Balaram Singh
-Versus
The State of West Bengal & Anr.
For the Appellant : Mr. Biswajit Manna, Amicus Curiae
For the State : Mr. Abhra Mukherjee
Mrs. Debjani Sahu
Heard on: 11.09.2018, 16.11.2018 and 18.12.2018
Judgment on : 19.12.2018
SHIVAKANT PRASAD, J:
The appellant has preferred this appeal against the judgment and order dated
22.08.2014passed by the Additional Sessions Judge, First Court, Purulia in Sessions Trial No. 21 of 2014/ Sessions Case No. 93 of 2014 thereby convicting the appellant for the offence punishable under Section 325 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 5 years and also to pay fine of Rs. 5,000/- in default to suffer simple imprisonment for a period of two months.
The complainant lodged written complaint before Arsha Police Station, inter alia, alleging that on 01.12.2013 at about 7 A.M. when her mother namely, Pakshibala Poddar was proceeding with cow dung on her head to store the way to the house of Balaram Singh, the appellant who suddenly ran towards her with an axe and assaulted violently on 2 her head. She fell on the earth, the appellant assaulted her by a stone on her face and said that he would kill her. As a result of assault, she became unconscious with profuse bleeding. Then the complainant, Paru Poddar and Pinki Poddar came to save her mother, Pakshibala Poddar and they were pushed down by the appellant and abused by calling her a witch and held out threat with dire consequences. Thereafter her mother was shifted to Purulia Sadar Hospital for treatment.
On the above complaint, Arsha P.S. Case No. 112/13 dated 01.12.13 under Sections 323/325/326/307/506 of the Indian Penal Code was registered. After completion of investigation, the Investigation Officer (in short, "IO") submitted charge sheet no. 04/14 dated 27.1.14 under Section 323/325/326/307/506 of the Indian Penal Code against the appellant to face trial in open court.
After the case was committed to the Court of Sessions Case, learned Sessions Judge after taking cognizance under Section 193 of the Code of Criminal Procedure transferred the case to the court of learned Additional Sessions Judge, 1st Court, Purulia for trial and disposal. The appellant stood trial upon framing of the charges under Sections 323/325/326/307/506 of the Indian Penal Code vide order dated 17.5.2014 which were read over and explained to the accused/appellant to which he abjured the guilt.
In order to bring home charges leveled against the accused/appellant, the prosecution examined as many as 10 witnesses and after completion of examination of all witnesses, the accused/appellant was examined under Section 313 of the Code of Criminal Procedure to which he declined to adduce any defence witness.
On conclusion of the trial and upon hearing both the parties and on perusal of the evidence on record, the learned Trial Court was pleased to convict the appellant for the 3 offence punishable under Section 325 of the Indian Penal Code and sentenced him to suffer imprisonment for a period of 5 years and to pay fine of Rs. 5000/- with default clause.
On being aggrieved, the appellant has preferred instant appeal, inter alia, on the grounds that the FIR does not find corroboration by its maker PW1 as she narrated the incident to PW7 in the police station who ascribed the First Information Report whereas, PW7 deposed that he wrote the complaint in his house and the PW1 took the same from him and LTI was taken by someone.
I am unable to agree with such a ground in this appeal. I find from the evidence of PW1 that she has categorically deposed that she lodged a written complaint in the P.S. which was written by Mukti Majhi (PW7) as per her dictation and after the contents were read over and explained to her. Her deposition corroborated the contents of the FIR about the incident taking place because she did not specifically state that it was written at the police station itself rather the complaint was written by PW7 at her dictation. Even if it is accepted as per version of PW7 that it was written by him in his house, there is minor contradiction.
Mr. Biswajit Manna, learned Amicus Curie, submits that the FIR is ante dated and sent to the Chief Judicial Magistrate after 5 days from the date of registration of FIR. He also disputed the place of occurrence whether it is on road, in front of his house or outside the house by taking note of sketch map.
It is true that the FIR was registered on 01.12.2013 but the same was seen by CJM, Purulia on 05.12.2013. I am of the view that mere delay in sending the FIR to the 4 Chief Judicial Magistrate is not a circumstance to discard prosecution case in its entirety [See: 2006 Cri. L. J.(SC) 957].
It is also submitted that the medical evidence does not support the oral testimony of the injured who according to the prosecution case was injured by an axe and then by throwing rock on her face and the veracity of the testimony of the PW-6 has not been well appreciated by the learned trial Court. Mr. Manna further submits that PW-1 and 2 are the daughter and daughter-in-law of the injured PW-6 whereas the other prosecution witnesses have not come forward to support the case of the prosecution. It is also submitted that the injury as reflected from the medical evidence is on right jaw which might have been caused on fall on rock or hard substance and that too, such fracture on jaw has not been supported by medical evidence and medical report. X-ray has not been produced before the trial court to test the veracity as to whether there was at all fracture on jaw of the injured PW6.
My attention is also brought to the evidence of PW-6 who on her own said that she was unconscious for three days whereas the doctor PW_8 examining the injured stated otherwise that patient was conscious and could talk. Accordingly it is submitted that the learned judge has failed to apply his judicial mind as none of the prosecution witnesses has deposed anything about the nature of the offence committed by the appellant. It is also submitted that finding of guilt is based on the interested witnesses who are related to the injured. Mr. Manna submits further that the evidence taken together on its appreciation will not give out a case of offence under Section 325 of the Indian Penal Code . It is also pointed out that as per cross-evidence of doctor PW-8, the injury was on forehead region and the main injury is in her mouth but there is no injury on the middle portion of head and 5 injuries mentioned in the treatment sheet may be caused on fall on rocky road with basket full of cow dung according to the opinion of the doctor. So benefit of doubt be given to the appellant.
It would appear from the evidence of injured Pakshibala Poddar, P.W.6 that when she was busy in throwing cow dung, suddenly the accused came out from his house and hit her by a small axe on her head calling her a witch and he started hitting her on her chin by a piece of stone, as a result, she sustained injury. Babli Poddar P.W.3, Pinki Poddar P.W.2 rushed there and tried to restrain Balaram Singh but he pushed them away and they fell down. According to P.W.6 she was unconscious for three days and was admitted for 11 days in Sadar Hospital, Purulia on 01.12.2013 and discharged on 11.12.2013 for treatment of multiple injury on face and forehead which is evident from the treatment sheets and discharge certificate (Ext. 2).
Indubitably, P.W.1, P.W.2 and P.W.3 are related to each other. P.W.1 testified the fact that her mother was unconscious and she was taken to the police Station but there is no such corroborative evidence that she was unconscious. P.W.2 Pinki Poddar also testified the fact that she has seen the appellant assaulting her kakima where the cow dung was stored. P.W.3 has also deposed that PW6 is aunt by village curtsy who saw the appellant assaulting P.W-6 in the middle portion of her head, as a result, she fell down and became unconscious. P.W.4 Muchiram Gorai has only seen the injury on the head and face of Pakshibala but he is not an eye witness to the incident taking place. P.W.5 has seen the incident at the place of occurrence.
I am of the view that merely because the aforesaid witnesses are related to the injured, cannot be a ground to discard their evidence, particularly when their evidence on 6 merits are worthy of reliance rather close relationship of witnesses with the injured probalise their personal knowledge about the incident because their evidence find corroboration by medical evidence.
In this context, the evidence of Dr. Narayan Mukherjee the P.W.8 is important to take note of as to whether the fact of injury on the forehead of the injured P.W.6 finds corroboration by medical evidence. According to the P.W.8, the patient was examined by him and found the following:-
1) Scalp injury, lacerated injury 1 ½" x ½" bone deep.
2) Lacerated injury at the left side of lower jaw, measuring 1½" X ½ " muscle deep
3) Swelling found in the right shoulder and the infra clavicular.
Patient was conscious, alert, but she was unable to open her mouth. History given by her was that she was assaulted by Balaram Singh by rocks. She was given some treatment. P.W.8 advised for investigation like C.T. scan of brain, X-ray of chest, jaw and mandibular region and also referred her to Orthopedic surgeon and Dental Surgeon. After investigation, mandibular fracture was found. She was referred to higher centre. Treatment sheets along with treatment sheets of Orthopedic and Dental Surgeon was proved marked as Exbt.2 collectively.
Though the story of assault on the forehead of the injured with the help of axe may not be believed but it is evident from medical evidence that the injured P.W.6 suffered scalp injury on forehead and also injury on her jaw. However, I do agree with Mr. Manna, learned amicus curiae that there is no proof as to the surgery undergone by the injured P.W.6 for transplantation of jaw, teeth and gum.
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Giving an anxious consideration to the above facts and circumstances of the case, I am of the considered view that order of conviction recorded under Section 325 Cr.P.C. by the learned trial be maintained. It is submitted by learned amicus curiae that the appellant has suffered pretrial detention for one month since arrest and release on 15th October, 2015 and in this appeal, the appellant was released on 19th February, 2015 by this Hon'ble Court. So he has undergone seven months imprisonment prior to the date of his release by this Court but he was rearrested on 20th May, 2018 and is languishing in jail suffering sentence. Therefore, the period undergone is more than one year. The provision of Section 325 of IPC provides for a term punishment. Therefore, bearing in mind the nature of offence suffered by the injured, in my view, the period undergone by the appellant will suffice the ends of justice. However, imposition of fine of Rs.5,000/- in default to suffer S.I. for two months for the said offence shall remain intact.
With the above modification, this appeal is allowed in part.
The extract copy of the ordering portion be communicated by the criminal department to the Superintendent, Correctional Home and a copy of this judgment together with LCR be sent down to the learned court below forthwith.
Urgent photostat certified copy of this order if applied for shall be given to the parties as expeditiously as possible.
(Shivakant Prasad,J)