Supreme Court - Daily Orders
Srinath @ Sribas Durlav vs State Of West Bengal on 24 August, 2016
Bench: Jagdish Singh Khehar, Arun Mishra
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 370 of 2010
SRINATH @ SRIBAS DURLAV & ANR. Appellant(s)
VERSUS
STATE OF WEST BENGAL Respondent(s)
O R D E R
The appellants Srinath Durlav and Jharu Durlav are aggrieved by their conviction recorded by the trial court and affirmed by the High Court for commision of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC) for committing murder of Radha Rani.
Karna Durlav, Jharu Durlav and Srinath Durlav have been convicted under Section 302 IPC and have been sentenced to life imprisonment and fine of Rs.2,000/- each in default to undergo six months' rigorous imprisonment. Jharu Durlav has also been convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/-, and in default to undergo rigorous imprisonment for six months. Jharu Signature Not Verified Durlav and others have also been convicted under Section Digitally signed by NEELAM GULATI Date: 2016.08.27 12:52:50 IST Reason: 148 IPC and sentenced to undergo rigorous imprisonment for three years each.
2The prosecution case in short is that the incident took place on 7th March, 1985 in which five accused persons namely Srinath Durlav, Jharu Durlav, Sukesh Durlav, Badal Durlav and Balaram Durlav and many others had attacked house of Tarapada Durlav. They were armed with sharp weapons and caused injuries to deceased Radha Rani, Tarapada Durlav and others. All the injured persons were admitted in the Shaktinagar Hospital. The incident took place at about 3 p.m. The first information report was lodged at about 09.05 p.m. at Kotwali P.S., Krishnagar, Nadia.
As per the prosecution case the accused persons were chasing one Haju who ran away after assaulting one Aarti. The accused persons doubted that the Haju has been given shelter and has entered the house of deceased Radha Rani and Tarapada Durlav-PW2. Whereas he has entered in the adjascent house and taken shelter therein. These accused persons then assulted Tarapada and Radha Rani inside their house. Radha Rani had succumbed to the injuries. Tarapada sustained injuries in addition two more persons -Subhas Durlav-PW5 and Narayan Durlav also sustained injuries outside the house of Tarapada.
The prosecution had examined in all six eyewitness. The conviction of the appellants is mainly based upon the statement of Subhas-PW5.
It was submitted by the learned senior counsel appearing on behalf of the appellants, that as stated by 3 Tarapada-PW2, Subhas Durlav-PW5 who is son of Tarapada Durlav- PW2 had not seen the incident when Radha Rani and the said witness Tarapada Durlav- PW2 were assaulted. He came later on. It was submitted by learned senior counsel that Subhas Durlav-PW5 was in the house of Balaram which is situated three houses away from his house. Other witnesses have not stated that any injury was inflicted by the appellants on the person of the deceased namely Radha Rani Durlav. Thus the appellants could not have been convicted for commission of offence under Section 302 IPC . Learned senior counsel has taken us through the various statements of the eye witnesses (PW1 to PW6) recorded by the trial court.
It was submitted on behalf of the learned counsel appearing on behalf of the State that Subhas Durlav-PW 5 is son of Tarapada Durlav-PW2 and is an injured witness. He has attributed injuries caused to the deceased.
It was submitted that the corroboration is rendered as to the presence of the appellants by the other witnesses also as such no case for interference in ordering conviction is made out.
The main question for consideration is that the incident had taken place when the accused persons were chasing another person namely Haju, who was running after assaulting one Aarti. The accused persons doubted that he has been given shelter by Tarapada Durlav-PW2 and Radha Rani whereas it was not so. Tarapada Durlav-PW2 and 4 Radharani were in the house at the time when she was assaulted. Tarapada Durlav-PW2 is the witness whose presence cannot be doubted at the time when Radha Rani was assaulted. We have scrutinised the statement of Tarapada-PW2, which is extracted herein:
“Haju had entered into my house. Saying this karna dragged my wife from the verandah and brought her to the courtyard. Thereafter Balaram assaulted my wife with iron rod. Karna stated assaulted her with iron rod. Thereafter Srinath Jharu Sukesh started assaulting me. Jharu hit me on my head and near my left ear with a chipda Sukesh struck me with lathi on my head. Srinath assaulted me with iron rod petkata Badal and Bara Badal were standing there and ordered the said assailants to assault us. Thereafter we became unconscious. I regained consciousness at 4 AM. My son also regained his consciousness at hospital. I did not see who assaulted Subhas.” A perusal of the afore-extracted statement made by Tarapada Durlav-PW2 clearly makes out that the persons who are responsible for causing injuries on the person of the deceased Radha Rani are Balaram with iron road and Karna also with iron rod. No injury had been attributed by Tarapada-PW2 to the present appellants. Balaram has not been made accused for the reasons best known to the prosecution nor chargesheet was filed against Balaram though his name was specifically mentioned in the FIR and also in the statement of different prosecution witnesses. 5 There is no doubt about it that Srinath and Jharu had assaulted the witness Tarapada-PW2. Jharu inflicted injury on the head of Tarapada-PW2 near left ear with chipda and Sukesh also assaulted him with iron rod on his head. For that they have been convicted for commission of offence under Section 326 IPC. There are no charges framed under Section 149 IPC against appellants. Charge under Section 34 IPC was not found established. In the facts and circumstances of the case, they are liable to the injuries caused to the witness Tarapada-PW2 and others but not on the person of the deceased.
When we peruse the statement of other witness Subal Durlav-PW1. He is neighbour of Tarapada-PW2 and has seen the part of incident outside the house of Tarapada-PW2 . He has stated that he saw Jharu and Srinath assaulted Subhas ouside the house of Balaram. Jharu assaulted Subhas with lathi on his head, back and leg. Thereafter he has also stated that he saw many persons coming out from the house of Tarapada-PW2 including Balaram, Badal and Karna. He has not at all stated that the present appellants inflicted any injury on the person of the deceased. As a matter of fact, he has not witnessed the assault of Radha Rani.
Yet another eye witness Dasu Durlav-PW3 has been examined on behalf of the prosecution. He has stated that the accused Balaram assaulted Radha Rani with iron on head as a result she fell down. Tarapada-PW2 and his son 6 Subash-PW5 were also assaulted but he did not see who assaulted them. He was declared hostile. He has also not attributed any injury having been caused on the person of the deceased by the present appellants.
Prosecution has also examined Narayan Durlav -PW4 who has suffered injury in the incident. He has stated that when he was returning he saw in front of the house of Tarapada Durlav-PW2, iron rod in the hands of Balaram and one rod in the hands of Jharu. When accused were returning from the house of Tarapada Durlav-PW2 at that time accused Jharu cut his middle finger of right hand. He has clearly stated that he had not seen the part of incident when the accused persons have assaulted Tarapada Durlav-PW2 and Radha Rani. Thus the statement of this witness is confined only with respect to the injury caused to him.
Subhas-PW5, son of Tarapada-PW2 is the main witness relied upon by the prosecution for recording conviction under Section 302 IPC of the appellants. Firstly, the witness has admitted that he was in the house of Balaram at the time of incident which is situated after three houses of his house. He came after hearing hue and cry raised from his house. The hue and cry was raised after assault has been made, is fortified by the fact that Tatapada-PW2-father of the witness-Subhas Durlav had stated that when he and his wife Radharani deceased were assaulted his son Subhas-PW5 was not present. Thus it is crystal clear that Subhas Durlav-PW5 was not present in the house 7 at the time of assault on deceased and he came later on, on hearing hue and cry that's why he has given the different version than that of his father-Tarapada-PW2.
Though Subash-PW5 had stated that appellant Srinath assaulted his mother with lathi, firstly as per other witnesses Srinath was not carrying lathi and Tarapada-PW2 – father of the witness who was injured and was beyond doubt present with the deceased in the house had not stated that Srinath assaulted his wife-Radha Rani. Thus version of the witness is contrary to version of his father Tarapada-PW2 and is not reliable as compared to Tarapada-PW2.
Similar is the version of Subash-PW5 with respect to Jharu. He has stated that Jharu has inflicted injury with the iron rod on Radha Rani whereas Tarapada- PW2 had not stated so. Thus the version of the Tarapada- PW2 is more reliable as compared to this witness and as per father this witness came later on and has not seen the actual assault. The witness Subhas-PW5 has suffered injuries outside the house obviously he has not seen actual assault and as stated regained conscious next day in hospital thus the version of Subhas- PW5 cannot be said to be useful so as to fasten the guilt upon the present appellants for commission of offence under Section 302 IPC.
We are left with the statement of PW6 namely Suprova Chatterjee. She had not seen the actual assault inside the house of Tarapada-PW2 and is a witness only with respect of 8 the fact that she saw Srinath assaulted Subhas outside the house when he was in front of the house of Balaram.
Thus in view of the ocular evidence, which has been adduced, we find in the facts and circumstances and also manner in which the incident had taken place, it would not be appropriate to convict the appellants for commission of offence under Section 302 IPC for causing death of Radha Rani as they had not assaulted her. Therefore we set aside the conviction of Jharu under section 302 IPC and however the conviction of Jharu under Section 326 IPC and of both appellants under Section 148 IPC is maintained. The appellants have already undergone the sentence under Sections 326 and 148 IPC they should be released forthwith if not required in any other offence.
Appeal is allowed.
……….…..............J (JAGDISH SINGH KHEHAR) …...…..............J (ARUN MISHRA) NEW DELHI AUGUST 24,2016 9 ITEM NO.102 COURT NO.3 SECTION IIB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 370/2010 SRINATH @ SRIBAS DURLAV & ANR. Appellant(s) VERSUS STATE OF WEST BENGAL Respondent(s) (with appln. (s) for permission to file additional documents and office report) Date : 24/08/2016 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR HON'BLE MR. JUSTICE ARUN MISHRA For Appellant(s) Mr. Pradip Ghosh, Sr. Adv.
Ms. Narmada, Adv.
Mr. Chanchal K. Ganguli, Adv.
Mr. R. P. Wadhwani,Adv.
For Respondent(s) Mr. Joydeep Mazumdar, Adv.
Mr. Debojyoti Bhattacharya, Adv.
Mr. Parijat Sinha,Adv.
UPON hearing the counsel the Court made the following O R D E R Appeal is allowed in terms of the signed order.. The conviction of Jharu under section 302 IPC is set aside and however the conviction of Jharu under Section 326 IPC and of both appellants under Section 148 IPC is maintained. The appellants have already undergone the sentence under Sections 326 and 148 IPC they should be released forthwith if not required in any other offence.
(NEELAM GULATI) (RENUKA SADANA)
COURT MASTER ASSISTANT REGISTRAR
(Signed order is placed on the file)