Calcutta High Court (Appellete Side)
Dipak Asur vs The State Of West Bengal on 29 November, 2017
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. 240 of 1994
Dipak Asur
-vs-
The State of West Bengal
For the Amicus curiae: Mr. Abhik Ghatak
For the State: Mr. Arun Kumar Maiti,
Mr. Sanjoy Bardhan,
Ms. Kaberi Sengupta
Heard on: 29.11.2017
Judgement on: 29.11.2017
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 30.06.1994 passed by the learned Additional Sessions Judge, Jalpaiguri, in Sessions Case 115 of 1991 convicting the appellant for commission of offence punishable under Section 304/Part II/34 of the Indian Penal Code and sentencing him to suffer R.I. for eight years.
Prosecution case as levelled against the appellant and another accused person is to the effect in the evening on 31.3.1994, the appellant and one Etowa Asur struck his wife suspecting her to be a witch. Dhaniram, P.W. 12, informed the husband of the victim Budhu Asur, P.W.1, who was at that time in the house of Julu Asur, P.W. 2. Dhaniram informed that he had heard of the incident from one Sanicharwa Asur, P.W.3. Hearing of the incident, P.W.1 rushed to his residence and found that the victim was lying senseless in the veranda of the room. He along with others brought the victim to the hospital of the tea Garden around 9 P.M. As her condition was serious she was referred to Malbazar Hospital. At Malbazar Hospital the doctor declared her death. On the complaint of P.W.1, Nagrakata P.S. Case no.20/91 dated 3.4.1991 under Section 304 of IPC was registered for investigation against the appellant and Etowa Asur and charge sheet was filed against them. The case being a sessions trial one was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge for trial and disposal. Charge was framed under Section 304/34 of the Indian Penal Code and the same was read over to them. The accused persons pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 11 witnesses and exhibited a number of documents to prove its case.
The defence of the accused persons was one of innocence and false implication. In conclusion of trial, the trial court by the impugned judgement and order dated 30.06.1994 convicted and sentenced the appellant, as aforesaid. By the selfsame judgment and order, co-accused Etowa Asur was acquitted of charge levelled against him.
Nobody appears on behalf of the appellant.
Mr. Abhik Ghatak is requested to assist the court as amicus curiae. Mr. Ghatak, as amicus curiae argued that there is delay in lodging the first information report which creates doubt as to the genesis of the incident. Names of the accused persons had been transpired in the inquest report wherein it is stated that the victim died due to a drunken brawl. Evidence of P.W.3 & 4 are contradictory to one another and P.W. 4 in cross-examination denied having seen the incident. Hence, the appellant ought to be acquitted of the charges levelled against them.
On the other hand, Mr. Maity along with Mr. Bardhan, the learned counsels for the State submitted that evidence of P.W.3 and clearly established the guilt of the appellant. One appellant had assaulted the victim with a lathi and the ocular evidence in that regard is corroborated by the autopsy surgeon, P.W. 10. Hence, the appeal is liable to be dismissed.
The most vital witnesses in the instant case are P.W.3 & 4 who claimed to be eyewitnesses of the incident.
P.W.3 deposed that he lived at Keron Tea Garden, Salku Line and P.W.4 also lived in the said line. P.W.1, Budhu Asur, the husband of the victim resided at Matu Line and at the time of occurrence he was at the house of Julu Asur (P.W. 2). He knew the victim Mangri Asur who was the wife of Budhu Asur. On the date of occurrence P.W. 3, Arjun (P.W. 4) and Mangri were sitting in the courtyard of Dhaniram. They were gossiping amongst themselves. At that time the appellant arrived there and assaulted Mangri on her head with a Danda. Out of fear they fled away. The witness met Dhaniram and reported him about the incident. On the next day, he came to know that Mangri had died. In cross-examination, he stated that courtyard of Bagri and Dhaniram are the same. Dhaniram resides alone in one room. The incident occurred on a Sunday. Bagri also resides in his room alone. His house is at the distance of two miles from the house of Budhu. He and Arjun were gossiping on the angina of Dhaniram and at that time neither Dhaniram nor Bagri were present there. On seeing them Mangri at once came to them. On the previous date they had drunk Haria. Mangri came there after drinking Haria. Arjun also consumed Haria. He was examined about the incident by darogababu. He identified the wearing apparels of the victim in Court.
P.W. 4, Arjun, deposed that he along with P.W. 3 and Mangri were gossiping in the courtyard of Bagri Asur. Suddenly Dipak Asur came there and he had an altercation with Mangri and in the midst of quarrel Dipak assaulted Mangri with lathi. Out of fear he and P.W. 3 ran away. Subsequently he came to know that Mangri expired. In cross-examination he further stated that in the evening they had gone to Matu Line and had taken Tari and then went to the house of Bagri but he was not there. Thereafter he was gossiping with Mangri. As they did not find Bagri they went to the house of Budhu. On going to the house of Budhu they found the wife of Budhu lying there with injuries and on seeing this out of fear they fled away.
P.W. 5 Dhaniram Gowala, deposed that he had heard the incident from P.W. 3 and had informed Budhu, husband of the victim. Thereafter Budhu took his wife to the hospital. On the next day he heard that Mangri had succumbed to injuries.
P.W. 2, Julu Asur, also corroborated the prosecution witnesses and deposed that the occurrence took place at 5P.M. At that time Budhu was in his house. P.W. 3 told him that Dipak assaulted Mangri. Budhu and others took Mangri to Garden hospital in an injured condition. Subsequently, he saw the dead body of Mangri.
P.W. 1, Budhu Asur, is the de facto complainant in the instant case. He deposed that the incident took place in the evening at 5.30 P.M. The appellant, Dipak, assaulted his wife with a lathi on her head calling her a witch. At that time he was present in the house of Julu, P.W. 2. P.W. 3 told to Dhaniram that Dipak assaulted his wife. Dhaniram, in turn, reported to him that his wife was assaulted by the appellant. He found fracture on the head of his wife. He went to Garden hospital. The doctor advised him to remove his wife to Malbazar hospital. He then took his wife to Malbazar hospital. The doctor inspected his wife and declared her as dead. He stayed there for the night. Thereafter on the next morning the dead body of his wife was taken to Jalpaiguri hospital for post mortem. He accompanied with the dead body of his wife for post mortem at Jalpaiguri hospital. He reported the incident at Nagrakata Police Station. Police officer wrote down the complaint as per his statement. He signed on the document marked as exhibit 1. At Malbazar hospital police officer inspected the dead body of his wife and held inquest on the dead body in his presence and he signed on the inquest report. He identified the wearing apparels of the victim. In cross-examination, he stated that his house is at a distance of 15 feet in front of Bagri. The house of P.W. 3 is at a distance of one mile from the house of Bagri and Dhaniram. On reaching his house he found Mangri was lying in the verandah of his house with injury on her head. The police officer came to the hospital at about 7A.M. on the next day and inspected the dead body of his wife and prepared the inquest report. From Malbazar hospital the police accompanied the dead body to Jalpaiguri hospital for post mortem. He was present in the hospital. After completion of post mortem the doctor handed over the dead body of his wife and thereafter he took the dead body of his wife to his house at Matu Line. He buried the dead body of his wife. After 10 to 12 days of the occurrence he went to the police station and reported the incident.
P.W. 6, Ganju Asur, was a post occurrence witness who deposed that he along with Budhu took the victim to the Garden hospital and thereafter on the advice of the doctor they removed her to Malbazar hospital where she declared dead.
P.W. 8 was posted as officer-in-charge at Nagrakata Police Station. On 03.04.1991 he recorded first information report as per statement of Budhu, P.W. 1, drew up the formal first information report and endorsed the case to S.I., A.K. Roy, for investigation. He proved written complaint marked as exhibit 1/1.
P.W. 9 is a watcher constable who carried the dead body of the victim to Jalpaiguri hospital for post mortem examination and deposited the wearing apparels of the victim at the police station which was seized under a seizure list.
P.W. 11, is the investigating officer of the instant case. He proceeded to the spot of occurrence and prepared a sketch map. He arrested the accused person. He deposed that the inquest report was prepared by Biman Bose marked as exhibit 6. He received the post mortem report from Biman Bose. He also received seizure list from S.I. Biman Bose. After completion of investigation he submitted charge-sheet against the accused persons.
P.W. 10, performed post mortem examination of the dead body and found the following injuries :
1) Callosity over the left renal angle, 4" x 3". There was blood clots deep in the callosity.
2) Scalp injury over the vault of the skull on the frontal region 1" x ½". There was haematoma deep in the scalp injury.
3) Fracture in skull over the frontal region.
4) There was blood inside the brain.
He stated that the injuries could be caused by lathi blows. After sustaining the injuries the victim may survive from few minutes to few hours. In his opinion the cause of death was due to shock and haemorrhage on account of above noted injuries which were ante mortem and homicidal in nature. He proved the post mortem report as exhibit 4.
The evidence on record particularly that of P.W. 3 clearly shows that the injury on the head of the victim was caused by the appellant. Cross- examination of P.W. 3 could not create any doubt in his evidence. It has been argued though P.W. 4 claimed to be an eye-witness, in cross- examination, he stated that when he went to the house of Budhu he saw his wife had sustained injuries. Analysis of evidence of P.W. 4, as a whole, would show that he deposed that in the evening he was gossiping with P.W. 3 and Mangri and, therefore, it is most likely he was present at the time of assault and not a post occurrence witness. Moreover, P.W. 3 has also corroborated such version.
Hence, I am of the opinion that a stray sentence in the cross- examination of P.W. 4 is not sufficient to dispel the otherwise convincing version of P.W. 3 as to the incident of assault on the head of the victim by the appellant with a lathi. P.W. 3 intimated Dhaniram (P.W. 5), who in turn, informed P.W. 1, the husband of the victim. P.W. 1 was at the residence of P.W. 2 at that time. The victim was thereafter taken to the Garden hospital and on medical advice shifted to the Malbazar hospital where she was declared dead. On the next date, P.W. 1 accompanied the dead body of his wife to Jalpaiguri hospital for post mortem. Then her dead body was handed over to him and he came back home. He buried his wife and thereafter he lodged the complaint. As a result there has been delay of about three days in lodging the first information report in the instant case. One cannot lose sight of the fact that P.W. 1 comes from an improvised community and is illiterate. He accompanied his wife to the hospital where he was declared dead. He accompanied the dead body to Jalpaiguri hospital and thereafter performed the burial rituals of his wife and then lodged the first information report. I am of the opinion that sufficient explanation has been given with regard to the delay in lodging first information report in the instant case. Therefore, I am not willing to disbelieve the prosecution case on such score. It has been argued that the name of the appellant had been transpired in the course of inquest which was held on the next date of the incident.
It is also argued that the genesis of the prosecution case as transpiring from the first information report is also not corroborated by the witnesses as they are completely silent as to the role of co-accused person. Recording of inquest report is for the purpose of noting the injuries of the victim and the case of death. In view of the purpose of holding inquest, it is highly likely that the police officer had not noted the name of the assailant in the inquest report.
That apart, the evidence of P.W. 3 is not only corroborated by other witnesses but is in consonance with the findings of the autopsy surgeon with regard to the nature of injury. A single lathi blow was found on the body of the victim which probalises assault by a single accused i.e. the appellant. Hence the acquittal of co-accused Etowa Asur cannot be the ground to disbelieve the prosecution case against the appellant which is based on cogent and convincing evidence.
In view of the aforesaid discussions, conviction of the appellant is upheld. Coming to the issue of sentence, I find that the appellant is a member of the scheduled tribe community. It also appears that there was an altercation between the appellant and the victim and in the course of such altercation he had dealt with a single lathi blow on her head.
In view of the aforesaid fact, I reduce the sentence imposed on the appellant and direct him to suffer rigorous imprisonment for five years. Bail bond of the appellant is cancelled. He is directed to forthwith surrender before the Trial Court and serve out his sentence in accordance with law, failing which the Trial Court shall take appropriate coercive measures to apprehend the appellant and execute the sentence in accordance with law.
Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
The appeal is, accordingly, disposed of.
I record my appreciation for the able assistance rendered by Mr. Ghatak, learned Counsel appearing as amicus curiae.
Copy of this judgment along with the lower court records be sent down to the Trial Court at once for necessary compliance.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties expeditiously.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) rkd/sd