Calcutta High Court (Appellete Side)
Bhabesh Mondal vs The State Of West Bengal on 3 December, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.A. No. 820 of 2013
Bhabesh Mondal
Vs.
The State of West Bengal
For the Appellant : Mr. Subhasish Dasgupta,
Mr. Nilendra Narayan Ray
For the State : Anand Keshri
Heard on : 03.12.2014
Judgement on : 03.12.2014
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 22.08.2013 passed by the learned Additional Sessions Judge, Fast Track Court, Sadar, Cooch Behar in Sessions Trial No. 01(09) 2008 (Sessions Case No. 191/2008) convicting the appellant for commission of offence punishable under Section 304 Part II of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs.2000/- in default to suffer a rigorous imprisonment for two months more with further direction that 50% of the fine amount, if realized, would go in favour of the defacto complainant/ P.W. 1 as compensation under Section 357 of the Code of Criminal Procedure.
Prosecution case, as alleged, against the appellant is to the effect that the appellant, who is a married person, proposed for marriage with Subhadra Barman, P.W. 2, sister of the victim, Kanai Barman. Over this issue on 20.10.2004 at about 5.00p.m. there was an altercation between the appellant and the victim on the P.W.D. Road in front of the house of the victim. In the course of such altercation the appellant assaulted the victim with fists and blows and the victim fell down on the spot. The appellant escaped. P.W.1, the wife of the victim and other family members rushed to the spot and found that the victim had died. P.W. 1 lodged written complaint with the police station which was registered as Sitalkuchi Police Station Case No. 57/2004 dated 20.10.2004 under Section 304 of the Indian Penal Code. In the course of investigation inquest was held over the dead body of the victim and postmortem examination was conducted. In conclusion of investigation charge-sheet was filed against the appellant under Section 304 of the Indian Penal Code. The case being a sessions triable one was committed to the Court of learned Additional Sessions Judge, Fast Track Court, Sadar, Cooch Behar for trial and disposal. Charge was framed against the appellant under Section 304 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial prosecution examined as many as twelve witnesses and a number of documents were exhibited. The postmortem report was exhibited upon admission under Section 294 of the Code of Criminal Procedure. The defence of the appellant was one of innocence and false implication. In conclusion of trial the learned Trial Judge by judgement and order dated 22.08.2013 convicted the appellant for commission of offence punishable under Section 304 Part II of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs.2000/- in default to suffer rigorous imprisonment for two months more with further direction that 50% of the fine amount, if realized, would go in favour of the defacto complainant/ P.W. 1 as compensation under Section 357 of the Code of Criminal Procedure.
Mr. Dasgupta, learned Counsel appearing for the appellant, submits that the independent witnesses viz. P.Ws. 6 and 7 have not supported the prosecution case. Other witnesses are relatives of the victim. There was enmity between the family of the victim and the appellant. Accordingly, the latter was falsely implicated. He further submits that prosecution evidence, even if believed to be true, speaks of assault by fists and blows and there is no evidence on record that the appellant was aware that the victim was suffering from poor health. He further submits that the postmortem doctor and other vital witnesses were not examined. Prosecution case including the cause of death has not been proved. He prays for acquittal.
Mr. Keshri, learned Counsel appearing for the State, on the other hand, submits that prosecution witnesses particularly P.Ws. 1 to 4 have clearly established that the appellant assaulted the victim and as a consequence he died. He further submits that postmortem report was admitted under Section 294 of the Code of Criminal Procedure and accordingly could be read as substantive evidence. He relied on Akhtar Vs. State of Uttaranchal reported in 2009 (13) SCC 722 in support of his submission. He accordingly prays for dismissal of the appeal.
P.W. 1, Juthika Barman, is the defacto complainant and the wife of the victim. She deposed that the victim was known to the appellant. She further deposed that the victim was ill at the time of occurrence. She stated that a quarrel broke out between the appellant and the victim as the appellant, in spite of being a married person, wanted to marry her sister-in- law, Subhadra. This was objected by her husband. On the date of occurrence, her husband and the appellant assaulted each other and her husband sustained injury on a weak portion of his body and died. She lodged a written complaint which was treated as first information report. In cross-examination, she stated that the place of occurrence is situated near her house. She admitted that her husband was suffering from disease in the chest and for that reason he would shiver. She also admitted that her husband was not assaulted by lathi and such fact was mistakenly written in the first information report. P.W. 2, Subhadra Barman, is sister of the victim. She stated that the appellant desired to marry her. Other family members came to know of this fact, her mother and elder brother (the victim herein) confronted the appellant on the road near their house. Such incident occurred four years ago at around 4/5 p.m. At that time a quarrel ensued and the appellant assaulted the victim. After the assault the victim fell down on the road. Hearing the cries from her brother she went to place of occurrence and found her elder brother was lying on the ground. They lifted him and brought him to the residence. Her sister-in- law, P.W. 1, lodged written complaint to the police station. In cross- examination she stated that she knew the appellant from before. She also stated that at the time of the incident she was at her residence with her brother's wife but her mother was with the victim at the place of occurrence. P.W. 3, Kumodini Barman, mother of the victim, stated that Subhadra was her daughter. At the time of occurrence Subhadra was about twelve years. As they were economically poor Subhadra used to work in the house of the appellant. The appellant insisted that Subhadra should not go to work in the house of others and even expressed his desire to marry Subhadra. P.W. 3 called the appellant and he came to the road near the side of his house. On the fateful day at around 5p.m. P.W. 3 alongwith the victim confronted the appellant. Appellant inflicted several blows on her son. As a result the victim fell down on the ground and died. Victim was removed to his residence. Thereafter, P.W. 1 lodged complaint. In cross-examination, she stated that she cannot say the exact date of birth of her daughter P.W. 4, Paresh Chandra Barman, is a cultivator. He was a member of Nagarnepra Grampanchayat under Chhoto Shalbari Grampanchayat. He stated that he knew the victim and that the victim was married to Juthika Barman. On the date of occurrence at around 5 p.m. he had come out of his residence in order to go to the field to bring back his cows. He found P.W. 3, Kumodini Barman, alongwith the victim were talking with Bhabesh Mondal, the appellant. An altercation ensued between the appellant and the victim. Appellant assaulted the victim with his hands. P.W. 3, raised hue and cry and he ran to the place of occurrence and found the victim had fallen on the ground and died. The place of occurrence is near the house of the appellant. Thereafter the victim was taken to his residence. Written complaint was lodged by P.W. 1 at the police station. He signed on the inquest report marked as Exhibit 1/1. In cross-examination, he stated that at the time of occurrence he was 50 cubits from the P.O. When he heard the cries from the mother of Kanai, the victim, he rushed to the P.O. and found Kanai was lying senseless on the ground. P.W. 5, Sukumar Barman, was tendered for cross- examination. P.Ws. 6 and 7 were declared hostile. P.W. 8, Abjal Hossain, is the scribe of the first information report. He proved written complaint which was treated as first information report as Exhibit 2 and his signature thereon as Exhibit 2/1. P.W 9, Thaneswar Roy, was a constable attached to the Shitalkuchi Police Station at the time of occurrence, who carried the dead body of the victim for postmortem examination. P.W. 10, Noorjaman Mia, is a witness to the inquest over the dead body. He proved his signature on the inquest report. P.W 11, Dinobandhu Barmab, is another witness to the inquest over the dead body of the victim. He proved his signature. P.W. 12, Indrajit Nag, Investigating Officer, was posted as S.I. at Shitalkuchi Police Station. He proved the formal F.I.R. which was drawn up by the Officer-in-Charge of the said Police Station and marked as Exhibit 2/3. He stated that in the course of investigation he seized wearing apparels of the deceased under the seizure list marked as Exhibit 7. He stated that charge-sheet was submitted upon conclusion of investigation.
Analysis of the evidence would show that a dispute had cropped up between the appellant and the victim over the issue of an intimate relationship which had developed between the appellant, a married man, and the sister of the victim, viz., Subhadra Barman, P.W.2 herein. Over such issue the victim Kanai and his mother, P.W.3 confronted the appellant on Sitalkuchi Road near their house. In the course of altercation, the appellant who was suffering from ailments being assaulted with fists and blows by the appellant fell down at the spot and succumbed to his injuries. The aforesaid incident was seen by P.W.3 who was present at the occurrence. P.W.4 is an independent witness who had come out of his house in order to go to field to bring back his cows. He also witnessed the incident standing 50 cubits away from the place of occurrence. P.W.1, the wife of the victim and the defacto complainant in the instant case and P.W.2, Subhadra were present in the house and claimed to have seen the incident. They rushed to the place of occurrence upon hearing hue and cry and found that the victim was lying senseless on the road after being assaulted by the appellant. From the aforesaid evidence of the prosecution witnesses, it is clear that the victim was assaulted by the appellant at the place of occurrence and as a consequence succumbed to his injuries then and there.
Mr. Dasgupta, learned advocate for the appellant has argued that there is no independent witness to the said witness. I am unable to accede to such contention as I find that the evidence of P.W.3 is corroborated by P.W.4, an independent eyewitness to the incident.
Mr. Dasgupta has also argued that the post mortem Doctor was not examined and the post mortem report had not been proved. He relied on Vijender Vs. State of Delhi, 1997 SCC (Cri) 857 (para 19) I find that the post mortem report was read in evidence upon admission under Section 294 of the Code of Criminal Procedure. It is settled that in the event a document is admitted into evidence under Section 294 of the Code of Criminal Procedure, the contents thereof become substantive evidence. In Akhtar & Ors. Vs. State of Uttaranchal, 2009 (13) SCC 722, at paragraph 21 of the report the Apex Court held as follows :
"21.It has been argued that non-examination of the medical officers concerned is fatal for the prosecution. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the post-mortem examination reports before the trial court. So the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under Section 294 Cr.P.C. It is settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party it can be read as substantive evidence under sub-section (3) of Section 294 Cr.P.C. Accordingly, the post-mortem report, if its genuineness is not disputed by the opposite party, the said post-mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined."
In Vijender (supra) the post mortem report was not read in evidence upon admission under section 294 Cr.P.C. On the other hand its proof by recording clerk instead of P.M. Doctor was objected to and it was marked as exhibit with objection. Moreover, carbon copy of the P.M. report was produced. In this backdrop, Apex Court held that the document was inadmissible as best evidence was withheld. In the present case, P.M. report had been read into evidence upon admission under section 294 Cr.P.C. Hence, the ratio in Vijender is clearly distinguishable on facts whereas that in Akhtar (supra) applied with full force to the facts of this case.
Accordingly, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt. The ocular version of the witness is supported by the post mortem report. I find from the post mortem report that the victim suffered head injuries and apparent cause of death has been stated to be 'intracranial haemorrhage due to injuries'. It is true that final opinion was reserved awaiting chemical examiner's report. It is nobody's case that the victim died a natural death or due to poisoning. No such suggestion is forthcoming from the defence. Hence, non- availability of the chemical examiner's report cannot create any adverse inference against the prosecution case.
In view of the aforesaid discussions, I am of the view that the ocular version as transpiring from the prosecution evidence is corroborated by the medical evidence as transpiring from the post mortem report. There is ample evidence on record that appellant was known to the victim from before. Hence it is most probable that he was aware of the poor state of health of the victim at the time of assaulting him.
Conviction of the appellant under Section 304 Part-II of the Indian Penal Code is accordingly upheld.
Coming to the issue of sentence, I find that the incident occurred in the course of a quarrel. P.W.1 stated that the appellant as well as the victim assaulted each other. The assault was by fists and blows only. Accordingly, I am of the opinion that the substantive sentence of imprisonment imposed upon the appellant may be reduced while restitutive justice may be achieved by directing payment of higher compensation to the wife of the victim, namely P.W.1.
Accordingly, I modify the sentence imposed upon the appellant and direct that the appellant shall suffer rigorous imprisonment for three years and pay a fine of Rs.15,000/- in default to suffer rigorous imprisonment for three months more with a further direction that 75% of fine amount if realised shall be paid to P.W.1. The period of detention undergone during investigation, enquiry and trial shall be set off under Section 428 of the Code of Criminal Procedure Code.
The appeal is partly allowed.
Let a copy of the judgment along with the lower court records be sent down to the trial Court forthwith.
(Joymalya Bagchi, J.) sd/as/PA to J. Bagchi, J