Calcutta High Court (Appellete Side)
Saranan Mal & Ors vs The State Of West Bengal on 31 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 294 of 2012
Saranan Mal & Ors.
-vs-
The State of West Bengal
For the appellants: Mr. Sekhar Kumar Basu, Sr. Adv.,
Mr. S. Mitter, Adv.,
For the State: Mr. Madhusudan Sur, A.P.P.,
Mr. Manaranjan Mahata
Heard on: 31.01.2018
Judgement on: 31.01.2018
Joymalya Bagchi, J.:
At the outset, it is informed that the appellant nos. 2 & 4 have expired. Death certificates of the appellants had placed on record. Appeal stands abated so far as the appellant nos. 2 & 4 are concerned.
The appeal is directed against the judgment and order dated 24.04.2012 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Rampurhat Birbhum, in Sessions Case No.86 of 2002(Sessions Trial No.II of August, 2003) convicting the appellants for commission of offence punishable under Sections 148 /448 /302 /323/149 of the Indian Penal Code and sentencing them to suffer R.I. for life and to pay a fine of Rs.10,000/- each in default to suffer further R.I. for two and half years more for the commission of offence punishable under Section 302/149 of the Indian Penal Code, sentencing them to suffer R.I. for three years and to pay a fine of Rs.500/- each in default to suffer R.I. for fifty days more for the commission of the offence punishable under Section 148 of the Indian Penal Code, sentencing them to suffer R.I. for one year for the commission of offence punishable under Section 448 of the Indian Penal Code and sentencing them to suffer R.I. for one year for the commission of offence punishable under Section 323/149 of the Indian Penal Code, all the sentences to run concurrently. 50% of the fine amount, if realised, shall be paid to Tapasi Mal (P.W. 1), the wife of the victim.
Prosecution case as alleged against the appellants is to the effect that on 12.05.1998 at around 5 P.M. the appellants entered the house of the defacto complainant Tapasi Mal and caught hold the collar of her father-in- law and started assaulting him. At that time her husband came to the spot and resisted the appellants. Tapasi also tried to restrain the appellants. They assaulted her with fists, blows and lathis and thereafter they pulled her husband outside the house and appellant no.3 assaulted him on the head with a farsa. Her husband was taken to Chatra Primary Health Centre and thereafter he was removed to Rampurhat S.D. Hospital. Tapasi lodged written compliant at the police station resulting in registration of Murarai P.S. Case No.38/98 dated 15.05.1998 under Sections 147/148/324/326/506 of the Indian Penal Code against the appellant. In the meantime the victim expired and Section 302 of the IPC was also added to the array of offence. In conclusion of investigation, charge sheet was filed under Sections 147/148/149/324/326/506/304 of the IPC. The case being a sessions trial one was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge for trial and disposal. Charges were framed under Sections 148/448/149/302/323 of the Indian Penal Code against the appellants and the same were read over and explained to them. The appellants pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 12 witnesses and exhibited a number of documents to prove its case.
The defence of the appellants was one of innocence and false implication. It was the specific defence of the appellants that there was a quarrel and free fight between the parties. Counter case being S.C. 62 of 2005 was registered at the behest of Khagen Mal, appellant no. 5, herein. They have been falsely implicated in the instant case.
In conclusion of trial, the trial court by the impugned judgement and order dated 24.04.2012 convicted and sentenced the appellants, as aforesaid.
Mr. Basu, Sr. Adv. with Mr. Mitter, the learned counsel for the appellants argued that the evidence of the prosecution witnesses are improbable and ought to be discarded. It is further submitted that there was delay in lodging the first information report and the F.I.R. has not even been proved. It is further submitted that there was a counter case lodged by the appellant no. 5 and it cannot be said that the appellants had shared the common object to kill the victim. The death of the victim occurred 18 days after the incident and the offence under Section 302 of the IPC has not been established beyond doubt. Evidence with regard to the exhortation by the appellant no.1 is not corroborated by P.W.1, defacto complainant and it cannot be said that such fact has been proved. Hence, the appellants ought to be acquitted of the charges levelled against them.
On the other hand, Mr. Sur along with Mr. Mahata, the learned counsels for the State argued that the evidence of the eyewitnesses proved that the appellants trespassed into the residence of the victim and had assaulted him resulting in his death. Ocular version of the eyewitnesses is corroborated by the medical witnesses. Accordingly, the appeal is liable to be dismissed.
P.W 1, Tapasi Mal, is the de facto complainant and the wife of the victim. She deposed that about six years ago on 28th day of Baisakh, at about 5p.m. she and her father-in-law Bagala Kanta Mal (P.W. 5) were inside their house. The appellants came into the house and started assaulting Baglakanta over land dispute. At that time her husband returned home and tried to save his father. She also tried to resist the miscreants. They were assaulted by the miscreants. Krishna Mal assaulted her husband with a farsha causing injury on his forehead and thereafter they left the spot. Her husband was taken to Chatra PHC for his medical aid and thereafter transferred to Rampurhat S.D. hospital. She lodged written complaint at Murarai police station which was drafted under her instruction by a policeman. Her husband succumbed to his injuries at Calcutta Medical College and Hospital 18 days after the incident. In cross-examination, she stated that written complaint was scribed by a policeman of Murarai police station. She did not know the name of the scribe. She was medically treated at Chatra PHC on the next date. She sustained injuries in her left finger and neck.
P.W. 4, Rani Mal, is a neighbour of the victim. She deposed that at about six years ago she heard hue and cry in the house of Radhashyam Mal and found that the accused persons were dragging Radhashyam Mal and was assaulting him in the courtyard. Accused Saranan was provoking other accused persons by saying "mar shalake". Father and wife of Radhashyam Mal was trying to rescue him and begging for mercy. Suddenly Krishna hit Radhashyam Mal on his forehead with a farsha and Radhashyam Mal fell down on the ground with profuse bleeding. In cross- examination, she stated that it is the fact that she stated before the investigating officer that the accused Saranan instigated the accused persons to cause assault upon Radhashyam Mal.
P.W. 5, Bagala Kanta Mal, is the father of the deceased. He stated that the incident occurred in the afternoon. He and her daughter-in-law were sitting in the verandah on the house. Suddenly abuses were hurled from the house of his brother Trilochan towards himself and his son. They requested them to stop and suddenly all the accused persons came to their residence and assaulted him. At that time Radhashyam Mal came out and the accused persons assaulted him with lathi, brick bats. Accused Saranan provoked the other accused persons by saying "salake mere de, ami police". Krishna with the help of tangi assaulted Radhashyam Mal on his forehead and he fell down on the ground. The accused persons left the spot. Then Radhashyam Mal was taken to the hospital where he died after 18 days.
P.W. 2, Dr. Subrata Roy, is the doctor who treated Radhashyam Mal at Chatra PHC and found injuries on his person. Injury report was marked as Exhibit-1.
P.W. 9, Dr. Goutam Deb Mukherjee, is the medical officer who treated the victim Radhashyam Mal at Rampurhat S.D. Hospital. He deposed that he examined the victim as indoor patient and found injuries on his forehead. He found black eye pain in the chest. He prepared bed head ticket of the patient. He proved the bed head ticket as Exhibit-6. Dr. Amal Saha, E.N.T. surgeon and a physician, Dr. Subhas Roy Chowdhury, wrote on the bed head ticket. On 26.05.1998 the patient was transferred to Burdwan Medical College and Hospital for better treatment and the medical report was prepared and signed by him marked as Exhibit-7.
P.W. 11, Dr. Subhas Roy Chowdhury, is the physician who treated the patient at Rampurhat S.D. hospital. He found hemiparesis in the right side of his body and the patient was suffering from fever with a history of injury on scalp. The patient was referred to the Burdwan Medical College and Hospital. He wrote the letter of reference marked as Exhibit-9.
P.W. 10, Dr. Nirmal Chandra Tripathy, is the doctor who examined the victim on 29.05.1998 at Calcutta Medical College and Hospital. He deposed that patient had stitched injury on his forehead. He admitted in the hospital for further treatment with the provisional diagnosis of head injury marked as Exhibit-8.
P.W. 12, Dr. Dipankar Guha Roy, is the autopsy surgeon who conducted autopsy over the body of the victim and found the following injuries :-
1. Fading bruise -3"/2" on right under and lower eyelid.
2. One fading bruise - 3.5"x 2-5"on left upper and lower eyelid.
3. One lacerated wound - 1.5"x .5" x muscle deep on left side of forehead, .5" lateral to mid-line and .7" above left eye-brow.
4. One subdural haematoma - 5"x 3" on right parietal lobe of brain with evidences of flattening of gyri and widening of sulci.
He opined that the death of the victim was due to the effect of head injury as noted in the post mortem report, ante-mortem and homicidal in nature. He deposed that the sub dural homatoma on the right parietal lobe of brain with evidence of flattening of gyri and widening of sulci is sufficient to cause death to a man in ordinary course of nature.
P.W. 8, Dr. Kamre Elahi, is the medical officer who treated P.W. 1 at Murarai PHC and noted simple injuries on her caused by hard and blunt object. He proved the injury report as Exhibit-6.
P.W. 3, S.I.U Banerjee, received the written complaint on 12.05.1998 and drew up the formal F.I.R. on 15.05.1998.
P.Ws. 6 and 7 conducted the investigation in the instant case. P.W. 7, Hari Pada Dey, visited the place of occurrence, drew up sketch map with index. He arrested the accused Khagen Mal on 16.05.1998. He recorded statements of the witnesses, collected the injury report as well as post mortem report of the victim. Upon transfer he handed over the investigation to O.C. of Murarai police station.
P.W. 6, Biseswar Mukherjee, submitted the charge-sheet. From the aforesaid evidence it appears that on the date of occurrence i.e. 12.05.1998 at around 5p.m. abuses were hurled from the house of Trilochone to P.W. 5 and his son Radhashyam, the victim P.W. 5, Bagala Kanta, requested to stop and a quarrel ensued. Over such issue the appellants, being variously armed, had entered the residence of the victim and started assaulting Bagala Kanta. Tapasi Mal, P.W. 1, wife of the victim, was present at the place of occurrence. At this juncture the victim Radhashyam Mal (son of Bagala Kanta) came to the spot and the appellants turned their attention towards him and started assaulting him. P.W. 1 resisted the appellants and was also assaulted. Suddenly appellant no. 3 struck on the head of the Radhashyam Mal with a farsa. The victim fell down and was shifted to Chatra PHC and thereafter to Rampurhat S.D. Hospital and finally to Calcutta Medical College and Hospital where he breathed his last 18 days later. It has been argued that there is delay in lodging of the first information report which has not been proved in the instant case. P.W. 1 lodged the first information report with the police. P.W. 3, Officer-in-Charge of Murarai P.S., has corroborated her version and had stated that he drew up formal F.I.R. on the basis of the complaint lodged by the P.W. 1. However, P.W. 1 could not state who was the scribe of the first information report. Consequentially, first information report has not been formally proved. In spite of the fact that the first information report has not been proved, I find ample evidence on record that P.W. 1 was present at the place of occurrence. The incident occurred in the residence of the victim. P.W. 1 is the wife of the victim and it is naturally that she was present there. That apart, P.W. 1 suffered injuries in the course of the incident which was proved by P.W. 8. Hence, I am unwilling to discard the version of P.W. 1, the most natural injured witness as to the manner and course of unfolding of the prosecution case. The evidence of P.W. 1 is corroborated by P.W. 5, her father-in-law as well as the neighbour, P.W. 4. However, the versions of P.Ws. 4 and 5 that appellant no. 1 had provoked other appellants to assault Radhashyam Mal, does not find support from the evidence of the injured witness, P.W. 1. Hence, I am unwilling to given credence to this aspect of the prosecution case as to the role of the appellant no. 1 in provoking others to kill the victim. Moreover, the exact words used by appellant no. 1 to provoke others has not been proved. Evidence of P.Ws. 4 and 5 in that regard are also at variance to one another. While P.W. 4 stated that appellant no. 1 shouted "mar shalake" i.e. "hit him", P.W. 5 deposed that the said accused had exhorted "shalake mere de......."i.e. "kill him". Hence, I am unable to come to a definite conclusion that the appellant no. 1 had exhorted other appellants to kill the victim. Coming to the role of the appellant no. 3 in the assault of the victim, I find that his role has been consistently narrated by the eye-witnesses viz. P.Ws. 1,4 and 5. He had assaulted the victim with a farsha on the head resulting in his death . Evidence of the autopsy surgeon (P.W. 12) corroborated this ocular version and it appears from his evidence that the victim suffered laviated injury on the forehead with a sub dural haematoma in the right parietal lobe of the brain resulting in his death. No doubt, such injury was sufficient in the ordinary course of nature to cause death. However, I find that there was a quarrel between the parties over a land dispute at the time of the occurrence and case and counter case was registered between themselves. It appears that under such circumstances appellant no. 3 suddenly in a fit of rage had struck a single blow on the forehead of the victim and the victim died after 18 days. It appears that he acted in a fit of passion in the course of a quarrel and had not acted in a cruel or unusual manner. Hence, I am of the view that his conviction on the score of Sections 302/149 IPC may be converted to Section 304 Part I of the Indian Penal Code.
Coming to the roles of the other appellants, I find that in the course of the quarrel they came in a body to the residence of the appellants and assaulted P.W. 1 and 5. Thereupon, the victim came and also assaulted. Suddenly, appellant no. 3 in a fit of passion assaulted the victim with a farsa on the head. The conduct of appellant nos. 1 & 5 in the backdrop of the quarrel which had ensured between the parties over land dispute and the case and counter case registered over the incident does not given an impression that they shared a common intention to cause death of the victim although they may share a common intention to cause grievous hurt on the victim. Hence, I convert the conviction of the appellant nos. 1,2,4 and 5 from Section 302/149 IPC to one under Section 326/34 I.P.C. In view of the aforesaid discussion, conviction of the appellant nos. 1 and 5 are recorded under Sections 148, 326/34, 448 and 323/149 IPC and they are sentenced to suffer imprisonment for the period already undergone and to pay a fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Sections 326/34 of the Indian Penal Code and the sentence in respect of the other offences as imposed upon them by the trial court are upheld, all the sentences to run concurrently. These aspects make it clear that the appellant no. 3 may have struck a single blow and intended to cause death of the victim but definitely caused injury which was sufficient in ordinary course of nature to cause death. Such injury had been caused in the course of a quarrel and in a feet of rage by the appellant no. 3.
With regard to the appellant no. 3, I modify his conviction recorded under Section 302/149 IPC to Section 304 Part I IPC and directed that he shall suffer rigorous imprisonment for ten years and pay a fine of Rs.10,000/-, in default to suffer rigorous imprisonment for two years for the offence punishable under Section 304, Part I of the Indian Penal Code. Conviction and sentence of the appellant no. 3 recorded by the appellant no. 3 on other counts are upheld and shall run concurrently.
Appeal is accordingly disposed of.
Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon them in terms of 428 of the Code of Criminal Procedure.
In the event the fine amount is paid, appellant nos. 1 and 5 shall be released from custody if they are not wanted in any other case.
Copy of the judgement along with the Lower Court Records be sent down to the trial court at once.
Urgent photostat certified copy of the order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) rkd/sdas