Calcutta High Court (Appellete Side)
Hiran Kundu & Anr vs State Of West Bengal on 24 February, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. 267 of 2000
HIRAN KUNDU & ANR.
Vs.
STATE OF WEST BENGAL
Appellants : Ms. Anusua Sinha, Advocate
For the State : Mr. Pawan Kr. Gupta, Advocate
Mr. Anand Keshri, Advocate
Heard on : February 21, 2017
Judgement on : February 24, 2017
Joymalya Bagchi, J. :
The appeal is directed against judgement and order dated 09.08.2000 passed by learned Additional Sessions Judge, 4th Court, Nadia in Sessions Trial No.III of 1998 arising out of Sessions Case No.12 of 1996 convicting the appellants for commission of offence punishable under Section 304/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for five years each and also to pay a fine of Rs.5,000/-, each in default to suffer further simple imprisonment for three months more.
The prosecution case, as alleged against the appellants is to the effect that on 06.11.1992 at about 7.00 hours the victim Sachindra Nath Roy alias Sachin Roy was supervising the harvesting of paddy in the paddy land situated on the northern side of the village and at that time the appellants along with other accused persons assaulted Sachindra Roy with Tangi Dao, and he sustained severe bleeding injuries on his person and was admitted to Kalyani J. N.M. Hospital. On the basis of complaint Smt. Kamalabala Roy Dhantala P.S. Case No. 127/92 dated 06.11.92 under Sections 148/149/324/325 of Indian Penal Code was registered for investigation and after the death of Sachin Roy section 304 of the Indian Penal Code was added to the array of offences in the F.I.R. and in conclusion investigation charge sheet was filed in the instant case under the aforesaid provision of law. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, 4th Court, Nadia was framed charges against the accused persons under Section 304/34 of Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined as many as 13 witnesses and exhibited a number of documents. It was the specific defence of the accused persons that some of them namely, Niranjan Kundu, Hiren Kundu, Surendra Nath Kundu and Pran Gobinda Kundu and had suffered bleeding injuries on their person due to assault by the men and associates of the victim as they had obstructed the latter from illegally harvesting paddy cultivated by them and in the melee the victim suffered injuries and subsequently expired. The prosecution case does not give a true account of the incident leading to the death of the victim. They sought to probablise their defence by way of effective cross-examination. In conclusion of trial the Trial Court by judgement and order dated 09.08.2000 convicted and sentenced the appellants, as aforesaid. However, by the self-same judgement and order the other accused persons namely, Niranjan Kundu, Surendra Nath Kundu, Chitta Kundu, Smt. Minati Kundu and Smt. Maya Kundu stood acquitted from the said charge.
Ms. Sinha, learned counsel appearing for the appellants submits that the Trial Court illegally made a distinction between the appellants and the other acquitted accused persons. She further submits that the prosecution witnesses have not given a true account of the events leading to the death of the victim as the serious injuries suffered by some of the accused persons in the course of the same transaction have not been explained by the prosecution. There is also no evidence on record to show that the incident occurred on the land of the victim and his family members and, therefore, the defence of the appellants that the victim suffered injuries in a melee when they resisted his unlawful act of harvesting paddy cultivated by them is probabilised and they are entitled to be acquitted from the charge levelled against them.
On the other hand, Mr. Gupta, learned counsel appearing for the State submits that appellants were present at the place of occurrence and there is cogent evidence that they assaulted the victim who subsequently expired. It transpires from evidence that after the incident some of the accused persons suffered injuries and the plea of private defence is, therefore, not probabilised in the facts of the instant case. Hence the appeal is entitled to be dismissed.
P.W. 1 is the de facto complainant in the instant case. She deposed that her nephew namely Sachindra Roy was murdered. 5 ½ years ago at 7.00 AM that incident occurred in the paddy land situated on the north of their house. The land was cultivated by Dulali Roy, Khagendra Roy, Jiban Roy and Bidhubhusan Roy and she was in the brinjal land situated by the side of her house. She heard sound from the paddy land. The distance of the paddy land and the brinjal land was about 200 yards. She went to the paddy land along with Dulali Roy. She found that the appellant and other accused persons were stabbing Sachindra by tangi, dao. The paddy was ready for harvesting and Jiban Roy, Khagen Roy, Bidhu Roy, Gopal Roy, Mrityunjoy Roy, Paban Roy, Kartick Roy and others were cutting paddy. Sachindra was looking after the work. As a result of assault he fell down on the ground. When they went to save Sachindra the accused persons chased them. Sachindra was carried to the hospital. She lodged F.I.R. which was written by Debasis Roy as per her instruction and she put her L.T.I. thereon. The content of the F.I.R. was read over to her. Sachindra died at Kalyani hospital due to his injuries.
In cross-examination she stated that accused Suren Kundu cannot walk freely. The accused persons chased them upto 50 cubits. She cannot say the plot number of the paddy land in question. The paddy land was recorded in the name of Sachindra. Chitta Ranjan Sarkar is the son of Purna Sarkar is the owner of the land. The paddy land was recorded in the name of the accused as Bargadars. After their purchase, accused purchased the share of Krishna Prava on 13.07.1992. She did not know if accused purchased the share of Sarbeswar, brother of Chitta Sarkar on 13.07.1992. The land was full of blood.
P.W.2, Khagendra Nath Roy deposed that 5 ½ years ago at about 7.00 AM when he was cutting paddy in his land and Sachin Roy was looking after the work along with others, accused persons resisted the victim. On hearing the cry of Sachin, he found the appellants stabbed him by tangi and others also were assaulting the victim with lathi. Sachindra fell down on the ground. The victim was taken to Ranaghat hospital and thereafter to Kalyani hospital and doctor of Kalyani hospital declared him dead.
In cross-examination he stated that his land and Sachin's land are the same but he did not tell to I.O. he was cutting paddy in the land of Sachin. He did not state to the police that the appellants had stabbed Sachin by tangi. On the same date accused Suren lodged F.I.R. for cutting premature paddy and they are facing trial in Ranaghat Court. He did not know if Pran Gobinda, Hiran and Gabinda were admitted in hospital.
P.W.3, Full Chand Roy deposed that 5 ½ years ago at about 7.00 AM when he was in his house he heard sound from the paddy land of Sachindra. He went to the land and found that Sachin was assaulted by the accused persons with tangi and lathi. Sachin died in hospital.
In cross-examination he stated that Bimal Roy and Susanta Roy are relatives. They are in police custody on the allegations that many weapons were recovered from their possession.
P.W. 4, Dulali Roy, is the wife of Sachindra Roy. She stated that he was murdered 5 ½ years ago at about 7.00 AM on the paddy land. Kamal Roy told her that there was trouble in their paddy land and when she went there she found that the accused persons were present there. Appellants assaulted her husband by tangi while other accused persons assaulted him with lathi causing bleeding injuries. She also got injury on the head by lathi. Local people came and assaulted the accused persons and dispersed them. The victim was carried to Ranaghat hospital. The area of the land in question is three bighas.
In cross-examination, she stated that they purchased the land from the Chitta Ranjan Kundu. She cannot say the date of purchase.
P.W. 5, Mrityunjoy Roy, stated that that 5 ½ years ago at about 7.00 AM he was in their paddy land with his elder brother, Sachin who was looking after the harvesting work. At that time the accused persons came and assaulted Sachin by tangi dao and local people came and dispersed the accused persons. The victim died in hospital.
In cross-examination he deposed that he could not say how they got the land.
He admitted that accused Pran Gobinda, Niranjan and Hiren got serious injuries on their persons. Accused Suren lodged F.I.R. against them at Dhantala P.S. alleging that they were damaging their paddy land and when they resisted, the accused persons assaulted them and a case is pending at Ranaghat Court.
P.W. 6, Dr. Niranjan Kumar Roy, Medical Officer at Ranaghat Hospital conducted the post mortem examination over the dead body of Sachin Roy. On examination, he found the following:-
"1. One stitched injury 3" in length, placed transversely on the posterior part of the vault of the skull.
2. One stitched injury 1" on the right parietal region, at the anterior part, placed obliquely. On dissection right parietal bone and occipital bone fractured. On opening - profuse intracranial haemorrhage with lacaration of the membrane.
3. One stitched injury 4" on the dorsum of the right hand placed transversely and obliquely."
He opined that the death was due to effect of the stated injuries which were antemortem in nature. He proved post mortem report which was marked as Ext. 1.
P.W. 7, Debasish Roy, is the scribe of F.I.R. He proved the F.I.R. which was marked as Ext. 2.
In cross-examination he stated that Kamala Bala Roy is his grand mother. P.W.8, Gopal Roy, stated that 5 ½ years ago at about 7.00 A.M. the incident took place in their paddy field. At that time he was cutting paddy along with others and his elder brother was supervising the work. At that time the appellants reached there with tangi dao and caused stab injuries on the person of Sachin Roy. The other accused persons assaulted him with lathi. Sachin fell on the ground. Neighbouring people came and assaulted accused persons and dispersed them. They carried Sachin to the house and thereafter to Aranghata hospital. After giving first aid he was taken to Ranaghat hospital. Doctor of Ranaghat hospital sent him to Kalyani Hospital where he died.
In cross-examination he stated that he and his brother are owner of the joint properties. They used to cultivate the land in bhag. Chitta Sarkar was owner of those plots. They used to deliver usufructs to him after collecting receipts.
P.W. 9, Pratap Nath an A.S.I. of police. He received the written complaint of P.W. 1 and drew up the formal F.I.R.
P.W. 10, Balai Chandra Mondal, an A.S.I. of police attached to Kalyani P.S., held inquest over the dead body of Sachin Roy. He proved the inquest report marked as Ext. 3 P.W. 11, Dr. Birendra Nath Bain, is the Medical Officer who was posed at Aranghata B.P.H.C. He examined Sachin Roy and found the following injuries:-
"1. Cut injury about 2" over head and scalp deep and cut about ½"
over the scalp.
2. Cut injury about 2" in length muscle deep on right hand dorsal aspect.
3. Cut injury 1½" in length over the right side of the shoulder area and muscle deep."
He stated that the two injuries on the head must have been caused by sharp cutting weapons. He referred the patient to Ranaghat S.D. hospital. He proved the injury report is marked as Ext. 4.
In cross-examination he deposed that he also examined Niranjan Kundu and found the following injuries:-
"1. Swelling and bleeding from nose.
2. Bruise over right arm and left leg."
Niranjan Kundu mentioned the names of Bimal Roy, Susanta Roy, Bidhu Roy and Jiban Roy as his assailants.
He also examined Hiren Kundu and found the following injuries:-
"1. One cut injury muscle deep and about 4" in length on the right thigh lateral aspect 'v' shaped.
2. Deep cut injury about 1" in length on the left thigh medical aspect.
3. Cut injury 1" length and muscle deep on the right elbow joint dorsal aspect.
4. Cut injury 1" in length muscle deep on lower position of back on left side of midline.
5. Cut injury 1 ½" and about ½" deep on the forehead over left eye-brow and another one about 1" length over left eye-brow.
6. Superficial cut about 1 ½" on medial aspect of left forearm.
7. Cut injury about 2" in length and muscle deep over left shoulder."
He also examined Surendra Nath Kundu and found following injuries:-
"1. Swelling over right hand over the base of 4th Metacarpal bone.
2. Superficial cut about 2 ½" over right thigh lateral aspect.
3. Swelling over right arm at deltoid region."
He also examined Prangobinda Kundu and found following injuries:-
"1. 1" superficial cut on the back of left forearm.
2. 1½" superficial cut over the right thumb dorsal aspect.
3. 2" deep cut over the forearm on the medial and lateral aspect of the lower end of the right forearm.
4. Over right deltoid 2" muscle deep cut injury on right deltoid area.
5. About 2 ½" muscle deep cut on the right side of the back below the right scapula.
6. Bone deep cut on right knee joint of 3" in length.
7. Superficial cut on left knee about 2 ½" in length
8. Superficial cut about 3" in length on left foot dorsal aspect. "
He referred some injured persons to Ranaghat S.D. Hospital. He proved the injury report is marked as Ext. A collectively.
P.W. 12, Amal Krishna Chakraborty, is the first I.O. in the instant case. He visited the placed of occurrence. He recorded the statements of witnesses under Section 161 of Code of Criminal Procedure. He arrested Hiren Kundu and Niranjan Kundu from hospital. He handed over the case diary upon to O/C his transfer.
In cross-examination he stated that he did not note the boundary of the place of occurrence in consultation with the settlement map. He did not ascertain the plot numbers on four sides of the place of occurrence He did not contact the land-owners on four sides of the place of occurrence. He deposed that a counter case was filed on the self same incident for causing injury to the accused persons. P.W. 4 did not tell him that the local people had assaulted the accused persons and they dispersed.
P.W. 13, Gour Gopal Pramanick is the second I.O. who recorded further statements under Section 161 of the Code of Criminal Procedure, collected the post mortem report and submitted charge sheet.
In cross-examination, he admitted that over the self same incident Dhantala P.S. Case No. 128 dated 06.11.92 was instituted. He did not seize any deed or parcha of the place of occurrence. He cannot say who was the owner of the land.
From the aforesaid evidence it appears that there is dispute as to who was cultivating the land in question, where the incident occurred. While P.W.1 admitted that the accused persons were the Bargadar in respect of the land, the other witnesses deposed that victim and his family members were cultivating the land under one Chitta Sarkar. No investigation was made to ascertain who was the Bargadar of the land and was cultivating paddy thereon.
P.Ws.12 & 13, the investigating officers of the case, have stated that they had not interrogated the owner of the land nor ascertained as to who was in possession of the land. It is, therefore, not clear as to who had cultivated the land wherefrom the paddy was being cut by the victim and his family members. It is the prosecution case that the victim's family had cultivated the land and were harvesting the paddy therefrom, when the appellants assaulted the victim resulting in his death. Thereafter the accused persons were assaulted by the local people causing severe injuries on their person. On the other hand, the defence version is that the accused persons were in possession of the land and had cultivated paddy which was being illegally harvested by the victim and the family members and when they resisted the latter some of them were severely assaulted by the men and associates of the victim and in course of the milieu the victim suffered injuries and succumbed to his death. Admittedly, a case had also been registered by the accused persons over the said incident against the prosecution witnesses. From the evidence on record, it appears that over the self same incident not only had the victim suffered fatal injuries but some of the accused persons had also suffered serious injuries and, in fact, two of them namely, Hiren Kundu and Niranjan Kundu, were admitted in hospital and were arrested therefrom. Nature of injury as transpiring from the evidence of P.W 11 upon the said accused person appears to be serious in nature. The explanation which is given by the prosecution witnesses that the accused persons were the aggressors and it was the local people who had assaulted them after the incident is vague and evasive in nature and does not inspire any confidence. On the other hand, from the counter case lodged over the incident it appears that some of the accused persons were injured in course of the said incident and not subsequently as claimed by the prosecution witnesses.
No evidence is forthcoming that Sachin and his family members had cultivated the land. The owner of the land had not been examined and no record of rights were exhibited to show that the victim and his family was in possession of the land. On the other hand P.W. 1 in her cross-examination admitted that the accused persons were the Bargadar of the land. It also appears that the accused persons had purchased a portion of the plots in question and there was no demarcation of such land. In the absence of clear and cogent evidence that it was the victim and the family members who were in possession of the land and had cultivated paddy therein it is difficult to come to a conclusion beyond reasonable doubt that they were lawfully harvesting paddy therefrom when the appellants assaulted the victim.
On the other hand, evidence has come on record probabilising some right of accused persons on the land in question and, therefore, is cannot be ruled out that they had cultivated paddy thereon and lawfully resisted the victim and his family members from cutting away the said paddy resulting in a skirmish wherein not only the victim but some of them suffered serious injuries and were hospitalised. The plea of private defence raised by the appellants in the instant case is, therefore, a probable one and had been accepted by the Trial Court in acquitting the other accused persons in the instant case. The only distinction drawn by the Trial Court in convicting the appellants while acquitting others was that the witnesses had deposed that appellants had hit the victim with a tangi dao while the other accused persons had assaulted him with a lathi. P.W. 1 does not ascribe of any such specific role to the appellants. Deposition of P.W. 2 in this regard is an embellishment as he admits that he did not state of any specific role of the appellants before the police officer. Evidence of P.W. 4 wife of victim, with regard to the specific role of the appellants is an improbable one as she came to the place of occurrence with P.W.1 who, however, does not corroborate her version. Evidence of P.W. 8 in this regard is also contradictory and in consistent. While P.W.8 deposed in Court that the appellants had assaulted victim with tangi, it is admitted by P.W.13 (I.O.) that he attributed such role to Jiban (acquitted accused) and appellant no.2 during his interrogation during investigation. In view of such inconsistent and embellished versions of the witnesses it would be extremely unwise to come to a finding of an aggravated role of the appellants in the instant case vis-à-vis the acquitted accused persons.
In the backdrop of the evidence on record particularly in view of the probable version of assault upon the victim in exercise of the right to private defence of the accused persons which appears to be have been accepted by the Trial Court in respect of some of them, I am inclined to extend the same benefit to the appellants. The appellants are, accordingly, acquitted and conviction and sentence imposed on them are set aside. The appellants shall be released from their bail bonds after six months in terms of Section 437A of Code of Criminal Procedure.
Copy of the judgement along with the L.C.R. be sent down to the Trial Court for necessary action.
(Joymalya Bagchi, J.) SB