Calcutta High Court (Appellete Side)
Sujit Ghosh vs The State Of West Bengal on 17 June, 2019
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan, Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
&
The Hon'ble Justice Jay Sengupta
CRA 769 of 2008
Sujit Ghosh
Vs.
The State of West Bengal
For the appellant : Mr. Partha Sarathi Bhattacharya
Mr. Sukla Das Chandra
For the State : Mr. S. G. Mukherjee
Ms. Rituparna De
Heard finally on : 10.06.2019
Judgment on : 17.06.2019
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment and order of conviction dated August 21, 2008 and sentence dated August 22, 2008 passed by the learned Additional Sessions Judge, Jangipur, Murshidabad in Sessions Trial No. 12(8) of 2007 arising out of Sessions Case No. 210 of 2007. By virtue of the impugned judgment appellant was convicted and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000/- in default rigorous imprisonment for one year for the offence under Section 302 of the Indian Penal Code, rigorous imprisonment for 10 years and to pay a fine of Rs. 5000/- in default rigorous imprisonment for one year for the offence under Section 307 of the Indian Penal code (hereinafter referred to as IPC) and was also sentenced to suffer rigorous imprisonment for 3 years for the offence punishable under Section 324 IPC with a direction for set off under Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.).
The prosecution case, in brief, is as follows:-
On April 21, 2007 at about 8.30 p.m. while victim Salma Bibi and P.W.2 were gossiping at Kalabagan appellant went there and wanted to have Salma Bibi but she refused to entertain him and as such appellant pushed her and started assaulting her with a bhojali on her chest and face. On seeing this when P.W.2 tried to resist him appellant also assaulted her with the bhojali on her belly as a result both of them sustained severe injuries. Hearing hue and cry people assembled and caught hold appellant with bhojali and police was informed and accordingly police came and took away the appellant with the bhojali. Both the injured were taken to Arupnagar BPHC where victim Salma Bibi expired while P.W.2 was referred to Jangipur SD Hospital.
P.W.1 on getting the news of incident from her mother (P.W.2) lodged a written complaint at the Samserganj P.S. scribed by P.W.14. On the basis of the above written complaint, Samserganj P.S. Case No. 59 dated April 21, 2007 under Section 326/307/302 IPC was started against the appellant and the case was endorsed to P.W.18.
On April 22, 2007 at 10.35 a.m. P.W.10 held inquest over the dead body of the victim Salma Bibi at Jangipur Hospital in presence of P.W.4, P.W.5, P.W.8 and P.W.9 and prepared report (Ext. 3/1) in connection with Raghunathpur P.S. U.D. Case No. 59 dated April 21, 2007.
On the same day (22.4.2007) P.W.15 conducted post mortem examination over the dead body of the victim Salma Bibi and during postmortem examination doctor found incised wounds on the frontal region in the left eye region, on the left cheek below left eye, right upper arm near arm pit and left chest above nipple and on dissection of the body he found haematoma at the frontal region, fracture of frontal bone with meninges torn and haemorrhage inside frontal brain tissue and accordingly opined that the death was due to sock and haemorrhage from the above injuries which were homicidal ante-mortem in nature. After post mortem examination he prepared a report (Ext.6).
P.W.2, the injured, was examined by Dr. Monirul Haque (P.W.16) at Anupnagar BPHC on April 21, 2007 and during examination he found penetrating injury over epigastrium and referred her to Jangipur SD Hospital for better treatment. On the same day P.W.2 was examined by Dr. D.N. Haldar (P.W.6) at Jangipur Hospital where she was admitted under surgical department and on examination he found one bandaged injury on the upper abdomen of P.W.2. According to the doctor, patient stated to him that she was assaulted with knife by Sujit Ghosh.
P.W.18 took up investigation of the case and during investigation examined witnesses, apprehended the appellant, seized weapon of offence namely bhojali, collected the inquest report of victim Salma Bibi and injury report of P.W.2, sent the seized articles to the FSL and thereafter on completion of investigation submitted charge sheet against the appellant under Sections 302/307/326 IPC.
On August 31, 2007 under Sections 302/307 and 326 IPC was framed against the appellant and on his pleading not guilty trial commenced.
Prosecution in order to prove its case examined as many as 18 witnesses and produced and proved the FIR, written complaint, rough sketch map with index, seizure lists, injury report, inquest report, P.M. Report, statements recorded under section 164 Cr.P.C. etc. and thereafter on conclusion of trial and on examination the appellant under Section 313 Cr.P.C. learned trial judge passed the impugned judgment.
Mr. P.S. Bhattacharya, learned advocate appearing for the appellant, submitted that the order of conviction and sentence of the appellant is not sustainable in law due to failure to establish the place of occurrence, absence of the name of the assailant in the inquest report, doubt with regard to seizure of weapon of offence, absence of any opinion of the doctor with regard to the nature of the arms used in causing the injury nor any such bhojali was shown to the PM doctor to ascertain whether the injury was caused by the same or not nor it was produced during trial for identification by the witnesses and there was a failure to produce any chemical examination report to connect the weapon with the crime. According to Mr. Bhattacharya, there was no premeditation or preplan to commit murder of the victim Salma Bibi nor there is any evidence that the appellant attempted to commit murder of P.W.2 and as such the provisions of Section 302 IPC for death of Salma Bibi is not applicable as it has occurred suddenly in a heat of moment after her refusal to entertain him nor the provisions of Section 307 IPC is applicable for injuries on P.W.2 as there was no attempt to cause her death and at best provisions of Section 304 Part I IPC is applicable for death of the victim Salma Bibi and Section 324 IPC for the injuries on the person of P.W.2. According to Mr. Bhattacharya, framing of charge both under Section 307 IPC and 326 IPC for the same offence was not proper nor the learned trial judge was justified in convicting the appellant both under Section 307 IPC and 324 IPC for the same offence.
Mr. Bhattacharjee relied on the decisions of Mahabir Ghosh Vs. State of West Bengal and others reported in (2006) 1 CAL LT 372 (HC), Ranajit Mondal and others Vs. State of West Bengal reported in (2015) 1 C CrLR (Cal) 897 and Furkan Sk. Vs. State of West Bengal reported in (2016) 4 CAL LT 568 (HC) in support of his submissions.
Ms. Rituparna De, learned advocate appearing for the State submitted that the prosecution has been successful to bring home the charges against the appellant. According to Ms. De, appellant is a local goon and his involvement in the crime has been duly proved by P.W.2, the injured eyewitness which also found corroboration from P.W.1 who lodged the FIR. The injury found on the person of the deceased found corroboration from the PM doctor (P.W.15) and that of P.W.2 found corroboration from the doctors PW6 and P.W.16. She further submitted that the motive of the appellant in causing death of Salma Bibi and inflicting severe injuries on the person of P.W.2 was very much apparent as he was carrying bhojali and after putting down the deceased he did not stop but went out to attack her thereby caused her death and on being resisted by P.W.2 he stabbed her on her belly. According to Ms. De, learned trial court was quite justified in convicting the appellant for the offence under Sections 302/307/ 324 IPC.
We have considered the submissions of learned advocates appearing for the respective parties and have gone through the evidence and documents on record to consider the propriety of the impugned judgment and order passed by the learned trial court.
From the evidence of P.W.10 and the inquest report (Ext.3/1) it was evident that P.W.10 on April 22, 2007 at 10.35 a.m. held inquest over the dead body of Salma Bibi at Jangipur SD hospital in connection with Raghunathgunj P.S. U/D Case no. 59/07 dated April 21, 2007 and found incised wounds of different dimensions on her cheek, chest, in the frontal region, in the left eye region etc. and accordingly sent the dead body to Jangipur hospital morgue to know the actual cause of death. From the evidence of Autopsy surgeon (P.W.15) and the PM report (Ext.6) it is evident that on April 22, 2007, P.W.15 during postmortem examination found incised wound approximately 3'' x ½'' x ½ '' in the frontal region, in the left eye region, in left cheek below left eye, right upper arm near arm pit and left chest above left nipple and on dissection he found scalp haematoma at the frontal region, fracture of frontal bone with meninges torn and haemorrhage inside frontal brain tissue and opined that death was due to shock and haemorrhage from the above mentioned organs which were homicidal and ante-mortem in nature. Defence did not dispute or deny the above findings of the autopsy surgeon.
From the evidence of P.W.16, it is evident that on April 21, 2007 he examined P.W.2 at the Anupnagar BPHC at 8.50 p.m. and found deep penetrating injury over epigastrium and accordingly referred her to Jangipur SD hospital for better treatment. During cross-examination he admitted that he did not record the history of injury, measurement of the injury or the nature of the weapon used in his report (Ext.7). From the evidence of P.W.6, it appears that on April 21, 2007 he examined P.W.2 at Jangipur Hospital where she was referred from Anupnagar BPHC and during examination he found one bandaged injury on the upper abdomen of P.W.2 and P.W.2 told him that she was assaulted by Sujit Ghosh by a knife.
Learned trial judge took into consideration the evidence of P.W.1, the FIR maker, P.W2, the injured eye witness, P.W.4, P.W.5, P.W.13, the post occurrence witnesses, recovery of weapon of offence, statements recorded under section 164 Cr.P.C. besides the evidence of the doctors and the investigating officer to arrive at the conclusion that the prosecution had able to prove the charges under sections 302/307/324 IPC against the appellant and accordingly passed the order of conviction and sentence.
P.W.1 is the daughter of the injured Shanti Das (P.W.2) and the FIR maker. She is post-occurrence witness who saw her mother having injuries on her person and also saw the appellant being apprehended by the local people with a bhojali in his waist and learnt from her mother that she was assaulted by the appellant as she tried to resist him when he attacked deceased Salma Bibi with a bhojali. She then arranged rickshaw for taking her mother to the hospital and thereafter lodged the FIR, scribed by P.W.14. P.W.14 also admitted that he scribed the complaint (Ext.5) as per dictation of P.W.1. During cross-examination P.W.1 admitted that she did not see the occurrence but clearly stated that she heard about the incidents from her mother. She also stated that hearing the incident she went to the spot. The above statements of P.W.1 found corroboration from her mother, P.W.2.
According to P.W.2, the injured eyewitness, on the relevant date at about 8.30 PM while she and the deceased Salma were gossiping at Kalabagan, appellant came there and wanted to have Salma to which Salma refused. Appellant then pushed Salma down and started assaulting her with a bhojali thereby causing injuries on her person. Seeing this when she tried to rescue Salma, appellant struck her with that bhojali on her belly. She sustained bleeding injury and out of fear started shouting. She then returned home with such bleeding injury and narrated the incident to her daughter Shyamali (P.W.1) and after narrating the incident she became unconscious and regained her sense at the hospital. She remained in the hospital for eight days. She narrated the incident to the Magistrate who recorded her statement and thereafter read over and explained to her and she being satisfied about the contents put her LTI thereon. She also narrated the incident to police. She was cross-examined by the defence at length and nothing came out contrary to her statements-in-chief. She admitted during cross-examination that she was a sex worker and the victim Salma Bibi used to reside with her in the same room. At the time of incident they were at the place of their business. She also stated to the investigating officer that the appellant assaulted Salma Bibi with bhojali. She also deposed that police examined her after eight days of incident when she returned back from hospital. The above statements of P.W.2 also found corroboration from her statements (Ext.8) made before the Magistrate (P.W.17) after return from hospital. She has given vivid description of the entire incident which remained unshaken during cross-examination. The injuries found on her person by the doctors P.W.6 and P.W.16 and upon the deceased Salma Bibi by the autopsy surgeon supports her claim. The evidence of P.W.2 appears to be trustworthy and reliable and nothing was brought out by the defence to discredit her.
P.W.4 is the son-in-law of P.W.2 and a post occurrence witness. According to him at the relevant time while he was in the market his daughter called him and accordingly he returned home. After returning home, he found his mother- in-law (P.W.2) sustained bleeding injury on her belly and napkin was tied on her belly. On being asked his mother-in-law told him that she was assaulted by appellant and asked him to look after Salma Bibi who was also assaulted by appellant by bhojali. Appellant was gheraoed by local people. Thereafter, police came and apprehended appellant with bhojali. He identified his signature (Ext.1) on the seizure list. During cross-examination he admitted that he did not see the incident of assault but clearly stated that at the time of occurrence he was 10 cubits away from the room of her mother-in-law. He, however, admitted that he signed on the seizure list at the P.S. and had no knowledge about the contents of the seizure list. Surprisingly, he was not challenged by the defence that no such bhojali was seized by police from the appellant in his presence.
According to P.W.5, on the relevant date at about 8.30 p.m. on hearing hue and cry he went out of his house and found P.W.2 with bleeding injury on her person. On being asked he came to know that she was assaulted by the appellant. P.W.2 also told that Salma Bibi was also assaulted by the appellant and she was lying there. Hearing that they went to the place and found Salma Bibi lying with bleeding injury on her person. He then accompanied P.W.2 to hospital. Police apprehended the appellant. He identified the appellant in course of his examination before court. He was declared hostile by the prosecution as he did not fully corroborate the prosecution case. However, during cross- examination by the prosecution he admitted that he stated to the IO that appellant assaulted P.W.2 and Salma Bibi by bhojali and appellant was arrested with bhojali by police which was seized by the police and he put his LTI on the seizure list. During cross-examination by the defence he clearly stated that at the time of occurrence he was at Kalabagan where he was working as a labour and the wearing apparels of P.W.2 were soaked with blood and blood was also falling down on the earth from the injury of P.W2. He also saw the place where Salma Bibi was lying with bleeding injuries and that place as also the wearing apparels of Salma Bibi were soaked with blood. He also stated that he went to the hospital along with Salma Bibi.
P.W.13 is another daughter of P.W.2. According to her, she heard from her mother (P.W.2) that on the relevant date while she and Salma Bibi were gossiping on the bank of the Ganges then at that time appellant went there and tried to take Salma Bibi inside the room which she refused for which appellant murdered her by bhojali and when she (P.W.2) mother tried to save Salma Bibi she was also assaulted by the appellant with a bhojali. During cross-examination by the defence she clearly stated that she heard about the incident from her mother.
P.W.3 and P.W.11 are not the witnesses to the occurrence and their evidence is hearsay evidence and as no reliance can be placed on it. P.W.6 is the doctor who examined P.W.2, P.W.7 is a doctor who was wrongly summoned, P.W.8 and P.W.9 are witnesses to the inquest. P.W.10 held inquest over the dead body of the deceased Salma Bibi. P.W.12 like P.W.3 was declared hostile by the prosecution. P.W.14 is the scribe of the compliant.
The place of occurrence as evident from the evidence on record particularly those of P.W.4,P.W.13 and P.W.18 it was palpably clear that the place of occurrence is a sex workers' colony situated near the river Ganga in front of the place of business of PW2 at Kalabagan. This also found corroboration from rough sketch map with index (Exhibit-9). Admittedly, investigating officer did not collect any blood stained earth from the place of occurrence. This shows laches on the part of Investigating Officer and defect in the investigation. It has been held by the Hon'ble Apex Court in a catena of decisions that defect in investigation will not result in acquittal of an accused against whom enough evidence was available for conviction. Therefore, our interference with the impugned judgment is not required on the above ground.
Regarding the seizure of the weapon of offence namely 'bhojali' and it's non production during trial or before autopsy surgeon, it is the specific claim of PW 18 that he arrested the appellant in presence of witnesses from the place of occurrence with a 'bhojali' and seized the same by preparing seizure list (Ext.1/1). This found corroboration from P.W.4, the seizure witness. P.W.4 duly identified his signature (Ext.1) on the seizure list. Interestingly he was not challenged by the defence that no such 'bhojali' was seized from the possession of the appellant in his presence. Though during cross-examination by the defence PW 4 admitted that he signed on the seizure list at the police station but that itself will not render his evidence ineffective. Moreover, even the appellant during his examination under Section 313 Cr. P.C. in reply to the question No. 21, relating to seizure of 'bhojali' from his possession did not specifically deny the same and merely took the plea of innocence. It is true that the seized 'bhojali 'was not produced during trial for identification by the seizure witnesses or before the autopsy surgeon for his opinion in the matter. In this regard it is the specific assertion of the investigating officer that after seizure of 'bhojali' and other articles he sent the same to FSL for chemical examination through ACJM Jangipur(Ext.10). This was not disputed by the defence. So, this was the reason for non production of the 'bhojali' during trial or before the autopsy surgeon. Moreover, non production of the 'bhojali' during trial will not render the evidence of the prosecution witnesses ineffective. PW2,the injured eye witness, has specifically stated on oath that appellant assaulted deceased Salma Bibi after taking out 'bhojali' from his waist and when she resisted she was also assaulted by that 'bhojali' thereby causing injuries on her belly. P.W.15 during postmortem examination found incised wounds of different dimensions on the person of the deceased Salma Bibi. PW 16, the doctor who firstly examined P.W.2, also found deep penetrating injury over epigastrium of P.W.2 and accordingly referred her to Jangipur hospital for better treatment. Thus the above oral evidence of PW2 found corroboration from the medical evidence. Though the seized weapon 'bhojali' was not produced before the autopsy surgeon but the nature of the injury itself suggests the same was caused by a sharp cutting weapon and 'bhojali' comes within the the purview of the sharp cutting weapon. According to P.W.18, he did not receive any chemical examination report before filing of the charge sheet. However, there is nothing on record to show that he ever took any initiative to collect the FSL report during his tenure. This was omission or negligence on the part of the Investigating Officer and defect in investigation. In the matter of Promod Dey v. State of West Bengal reported in (2012) 4 SCC 559 it was decided by the Hon'ble Supreme Court that non-collection of FSL report might be a defect of investigation which could not result in acquittal of an accused against whom enough evidence was available for conviction.
In the light of the evidence on record we do not find any substance in the submission made to the effect that the impugned conviction requires our interference on the ground of failure on the part of the investigating agency to collect the Forensic Serological Laboratory Report or to produce the arm during trial or before the autopsy surgeon.
The next issue which needs our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304, Part I IPC, as raised by the learned Advocate appearing for the appellant. In the case in our hand, we find from the evidence on record that deceased Salma Bibi was attacked by the appellant by a bhojali as she refused to agree to his advances. Appellant did not even stop after pushing her on the ground but went on striking her indiscriminately by the bhojali, he was carrying, on her head, face and chest and on being resisted by her collague, P.W.2 she too was struck by that bhojali in her belly. P.M. report shows that during postmortem examination doctor found incised wounds on the frontal region, in the left eye region, on the left cheek below left eye, right upper arm near arm pit and left chest above nipple and on dissection of the body he found haematoma at the frontal region, fracture of frontal bone with meninges torn and haemorrhage inside frontal brain tissue and opined that the death was due to shock and haemorrhage from the above injuries which were homicidal ante-mortem in nature. So, the number and nature of the injuries on the vital parts of the body of the deceased and even attacking P.W.2 on her belly when she came to rescue her colleague by the same bhojali which he was carrying suggest that the intention was clearly to cause death. Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under section 302 IPC against the appellant for causing death of deceased Salma Bibi.
We find that the learned trial judge has also convicted the appellant both for the offence under Sections 307 IPC and 324 IPC on account of sustaining injury of P.W.2 on her belly being assaulted by the appellant by a bhojali. Section 324 IPC speaks about the punishment voluntarily causing hurt with dangerous weapon while 307 of IPC relates to an attempt to murder, an offence which is more serious in nature. In the present case, both the Sections 324 IPC and 307 IPC need not be used simultaneously to convict a person for the commission of one and same offence. In the instant case, we find that P.W.2 sustained injury when she tried to resist the appellant from attacking deceased Salma Bibi. P.W. 16, the doctor, who examined P.W.2 at Anupnagar BPHC found deep penetrating injury over epigastrium and accordingly referred her to Jangipur SD Hospital for better treatment. On the same night patient was admitted at Jangipur SD Hospital under surgical department and was examined by P.W.6 who found one bandaged injury on the upper abdomen of P.W.2. He did not open the bandage. During cross-examination he deposed that the nature of injury has been said to be simple by Dr. R. Bhattacharya. Dr. R. Bhattacharya was neither examined nor any reason had been assigned as to how Dr. R. Bhattacharya came to that finding and noted his observation in the injury report (Ext.2) issued by P.W.6. The above noting in the injury report with regard to the nature of the injury and in the absence of the word "grevious" learned trial judge found the appellant guilty of offence under Section 324 IPC. But at the same time learned trial judge also found him guilty of the offence under Section 307 IPC taking into account the nature of the weapon used and the place where the injury was inflicted drawing an inference that the intention was to kill P.W.2. Undoubtedly, bhojali was used in causing injury on the belly of P.W.2 but there was no iota of evidence that the appellant had any intention or mens rea to kill P.W.2. It seems she was assaulted at the spur of the moment when she tried to resist him from attacking the deceased Salma Bibi. In such circumstances conviction of the appellant for commission of the offence punishable under Section 307 IPC can not sustain. We, however, do not find any impropriety on the part of the learned Court below to pass the order of conviction and sentence under section 324 IPC against the appellant for causing injury on the person of P.W.2.
We, affirm the conviction and sentence of the appellant for the offence under Sections 302 IPC and 324 IPC and quash and set aside the conviction and sentence of the appellant for the offence under section 307 IPC.
The appeal is thus allowed in part to the extent as directed hereinabove. A copy of this order along with the LCR be send down to the learned Trial Court forthwith.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Jay Sengupta, J.)