Calcutta High Court (Appellete Side)
Sunil Ghosh @ Sunila vs State Of West Bengal on 16 February, 2022
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item No.36
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Bivas Pattanayak
C.R.A. 420 of 2016
Sunil Ghosh @ Sunila
-Vs-
State of West Bengal
For the Appellant : Mr. Sekhar Barman, Advocate.
For the State : Mr. Tanmoy Kumar Ghosh, Ld. A.P.P.,
Mr. Narayan Prasad Agarwala, Advocate,
Ms. Subhasree Patel, Advocate.
Heard on : February 16, 2022.
Judgment on : February 16, 2022.
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated
17.03.2016and 18.03.2016 passed by the learned Additional Sessions Judge, 5th Court, Barasat in connection with Sessions Case No. 2(5) 01 (Sessions Trial Case No. 04(5) 03) convicting the appellant for commission of offence punishable under Section 304 Part I of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for three months more.
Prosecution case, as alleged against the appellant is to the effect that on 08.02.1999 at around 10.45 p.m. while Swarup Chakraborty was 2 making arrangement to go to bed, the appellant knocked on the door. Upon entering the house, he stabbed Swarup in his abdomen with a gupti which was hidden under a brown shawl. Parents of the deceased were present in the house and tried to intercept the appellant. In their attempt, they were able to snatch the shawl and the handle of the weapon from him. Thereafter, they took their injured son to Khardah Police Station, then to Balarampur Hospital and finally to N. R. S. Hospital where the victim expired in the night of between 09.02.1999 and 10.02.1999. Written complaint was lodged by Anil Kr. Chakraborty, father of the deceased resulting in registration of Khardah P. S. Case No. 56 of 1999 dated 10.02.1999 under Section 304 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed against the appellant. Charge was framed under Section 304 of the Indian Penal Code. In course of trial, prosecution examined 9 witnesses. Anil Kr. Chakraborty, father of the deceased and the informant in the instant case could not be examined as he had expired. Defence of the appellant was one of innocence and false implication. He, however, did not examine any witness in his favour. In conclusion of trial, the trial Judge by the impugned judgment and order dated 17.03.2016 and 18.03.2016 convicted and sentenced the appellant, as aforesaid.
Mr. Sekhar Barman, learned Advocate appearing for the appellant argues that the eye witnesses viz., mother and wife of the deceased are unreliable. Mother of the deceased (P.W. 1) stated she was in bed and did not find the appellant hit her son. P.W. 2, wife of the deceased stated she 3 was living separately prior to the incident. Thus they could not be treated as eye witnesses and their evidence is of no value. Hence, the prosecution case that the appellant had struck the victim with a gupti resulting in his death has not been proved. There is no motive to commit the crime. Weapon of offence has not been seized. Appellant is presently on parole. Under such circumstances, he prays that the appeal may be allowed and the conviction and sentence of the appellant be set aside.
Mr. Tanmoy Kr. Ghosh, learned Advocate appearing for the State submits that P.W. 1 is the most natural witness to the incident. She deposed she was in the house along with her husband when the incident occurred. She tried to save her son and had snatched the shawl along with the cover of the gupti from the appellant. Her deposition is corroborated by other prosecution witnesses as well as medical evidence. Hence, the prosecution case is proved beyond doubt. The appeal is liable to be dismissed.
Prosecution has examined P.W. 1, mother of the deceased and P.W. 2, wife of the deceased as eye witnesses.
P.W. 1, Tapati Chakraborty deposed she along with her husband and minor daughter was in the house at the time of occurrence. She further claimed around 10.45 p.m., the appellant inserted gupti into the stomach of her son. She caught hold of the appellant and his wearing apparels i.e. chadar came to her hand. She took the victim to Khardah Police Station, thereafter to Balarampur Hospital and from there to N. R. S. Hospital.
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P.W. 2, Nilima Chakraborty deposed on the date of the incident, the appellant came to their house and knocked on the door. Her father-in-law opened the door. There was altercation between her husband and the accused. Thereupon the appellant brought out a gupti and killed her husband. Her husband was taken to hospital where he died on 10.02.1999. She proved the signature of her father-in-law on the letter of complaint which was treated as first information report.
Evidence of the aforesaid eye witnesses have been challenged by the defence on various grounds. Referring to the cross-examination of P.W. 1, it is contended she was in bed and had not seen the appellant hit her son Swarup. With regard to P.W. 2, learned Counsel argues relationship between the couple was strained and she admitted that she was living separately from her matrimonial home prior to the incident. Hence, it is absurd that P.W. 2 could have seen the incident on the fateful night.
I have given my anxious consideration to the challenge thrown to the aforesaid eye witnesses. Though I find substance in the submission of the defence with regard to the presence of P.W. 2 at the place of occurrence, it is undisputed that P.W. 1 was in the residence when the incident occurred. In her deposition, P.W. 1 categorically stated that she was in the house with her husband and minor daughter. She saw the incident of assault and tried to save her son. In the course of scuffle, she snatched the shawl/chadar of the appellant. The cover of the gupti was also snatched away from the appellant.
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Referring to a stray sentence in her cross-examination, it is argued P.W. 1 is not an eye witness. I am unable to accept such proposition. Evidence of a witness is to be read as a whole. A stray or casual observation cannot be culled out from the entire evidence and a contrary inference be drawn therefrom. If the evidence of P.W. 1 is read as a whole, I find the said witness was very much present in the house when the incident occurred. She proved that the appellant had come to the house at night and thereafter her son suffered injury. She also stated that she tried to save her son and had snatched away the shawl/chadar from the appellant. Thus, deposition of P.W. 1 clearly establishes that the appellant had come to the house of the deceased and thereafter had attacked him which had prompted P.W. 1 to intervene in the matter and snatch away the shawl from the appellant. Stray observation that she did not find Sunil hit her son has to be judged in the backdrop of the entire evidence on record. Such observation would not alter the factual position that P.W. 1 was present at the place of occurrence and when the incident occurred had tried to intervene and in the scuffle had snatched away the shawl/chadar from the appellant. Furthermore, her evidence is corroborated by other witnesses.
P.W. 3, Sankar Bhattacharjee is a neighbour who though declared hostile admitted on hearing a noise, he came to the spot and found that there was a scuffle and the appellant was lying with an injury on the floor. 6
P.W. 4, Arup Chakraboroty, brother of the deceased, though hostile, also admitted that his younger brother had been murdered in his house on the fateful day.
P.W. 5, Biswanath Das, brother-in-law of the deceased deposed he came to the spot at 10 a.m. on the next day and heard from P.W. 1 that her son had been murdered by the appellant.
These witnesses, therefore, corroborate the prosecution case that the deceased had been murdered in the house on the fateful night. More importantly, P.W. 5 stated mother of the deceased i.e. P.W. 1 narrated the incident to him. Their depositions substantially corroborate the version of P.W. 1 and establish that the victim was brutally attacked in his house in the night of 08.02.1999 resulting in his death. Presence of P.W. 1 at the place of occurrence is most natural and the fact that she disclosed the name of the appellant as the assailant to P.W. 5 soon after the incident (even prior to registration of F.I.R.) clearly corroborates her claim as an eye witness to the incident. Medical evidence on record also corroborates the ocular version of P.W. 1.
P.W. 7, Dr. Tapas Kumar Bose is the Post Mortem doctor who noted the following injuries on the deceased.
"1) one stiched up surgical incised wound 9 ½" in length right para medium 1" below tip of xiphoid to 5" above symphysis pubis on opening the stitches abdominal parities and peritoneum seen stiched in layers and peritoneal cavity deep, evidence of repair of 7 coins of small intestine and mesentery seen with fair amount of blood stained fluid in peritoneal cavity.
2) one surgical incised drainage wound 1" in length with corrugaged rubber drain attached left lower abdomen. On opening peritoneal deep.
3) One surgical incised wound 1" in length with a corrugated rubber drain attached 3" above right anterior, superior illispine. On opening peritoneal cavity deep.
4) One incised penetrating wound 3 ¼" X ½"x abdominal cavity right hypochondrium 1" below coastal urge 2 ½"to the right of mid line. On desection and pressing the track it has seen to pass through skin sub-cutaneous tissues muscles, vessels, and nerves, and enter peritoneal cavity, margin clear cut angles acute, with abrasion upward direction downward, backward and right to left."
He opined that death was due to the effect of injuries ante mortem in nature. He proved the post mortem report (Exhibit 3). He stated that his opinion was concurred by Professor R. Basu, the then Head of the Department at N. R. S. Medical College and Hospital. He further opined that injury No. 4 may be caused by a sharp cutting weapon with pointed edges and used in a penetrative manner.
P.W. 8, Kush Chandra Roy is the Investigating Officer in this case. He deposed that he had seized the brown shawl/chadar as well as the cover of a gupti i.e. weapon of offence under a seizure list. He identified the articles in Court.
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Prosecution case as narrated by P.W. 1, therefore, not only receives corroboration from the evidence of other witnesses but also from the medical evidence and the contemporaneous seizure of the shawl and cover of gupti which was used as weapon of offence. Evidence of the eye witness P.W. 1 is, therefore, wholly reliable and receives corroboration, as aforesaid.
In this backdrop, failure to prove the motive of crime or non-seizure of weapon of offence does not affect the unfolding of the prosecution case or its credibility. Thus, I am of the opinion the prosecution case is proved beyond doubt.
Evidence on record does not show that the deceased was armed. On the other hand, deposition of P.W. 1 and other circumstances clearly establish the appellant had come to the house of the deceased with the weapon hidden under a shawl/chadar. This discloses his intention to kill the victim. My conclusion is further fortified by the severity of the blow inflicted by the appellant in the abdomen resulting in extensive damage to internal organs as per injury No. 4 noted in the post mortem report. It is also relevant to note that the appellant had attacked the deceased without provocation and the case does not appear to fall within any of exceptions to Section 300 of the Indian Penal Code. However, for reasons best known to the prosecution charge was framed under Section 304 of the Indian Penal Code and the appellant has been convicted on such score. Ordinarily, under these circumstances, this Court would be inclined to issue a Rule calling upon the appellant to show cause why he should not 9 be convicted of the graver offence of murder, however, as the maximum sentence of life imprisonment has been imposed upon him, I have chosen not to resort to such course of action.
With the aforesaid observation, conviction and sentence of the appellant is upheld.
The appeal is accordingly dismissed.
Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon the appellants in terms of Section 428 of the Code of Criminal Procedure. Parole of the appellant is cancelled and he is directed to surrender within a fortnight from date before the trial Court and serve out the sentence in accordance with law. In the event he fails to do, appropriate processes be issued to the appellant and execute the sentence in accordance with law.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.
I agree.
(Bivas Pattanayak, J.) (Joymalya Bagchi, J.) as/akd/PA (Sohel)