Calcutta High Court (Appellete Side)
Panchanan Das & Ors vs State Of West Bengal on 6 March, 2009
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present: The Hon'ble Mr. Justice Partha Sakha Datta CRA No. 312 of 1987 Panchanan Das & Ors.
Vs.
State of West Bengal
For the Appellant: Mrs. Pranati Goswami
For the State: Mr. Swapan Mallick
Heard on: 13-02-2009
Delivered on: 6th March, 2009.
Partha Sakha Datta, J.:-
15 appellants who were convicted by the learned Additional Sessions Judge, 6th Court at Midnapore on 18th June, 1987 in connection with Sessions Trial No. 3(10) of 1985 and 2(5) of 1986 under Section 304(II)/323 read with Section 149 IPC and under Section 148 of the IPC and sentenced to suffer R.I. for 5 years and to pay a fine of Rs.500/- with default stipulation under Section 304 (II) read with Section 149 IPC, to suffer R.I. for one year each under Section 323 read with Section 149 IPC, and to suffer R.I. for two years under Section 148 IPC have preferred this appeal. P.W. 1, Lakshman Chandra Samanta of village Begunberia under P.S. Sutahata lodged an ejahar against 16 accused persons including the present 15 appellants on 4th June, 1982 at 23-45 hrs. alleging the following incident:-
At about 9-00 p.m. on 4th June, 1982 the accused persons being armed with ballam, bows and arrows, sword, bombs etc. attacked the house of Satyeswar Bera to loot his movables. At that time he (defacto complainant) was in the group of processionist in connection with immersion function of the Goddes Mansa. A hue and cry was heard. He along with villagers came to the house of Satyeswar Bera and found the appellant Panchanan Das striking blow against Satyeswar by means of ballam near his abdomen, Debaprasad Kalsa struck Gopal Adak (P.W. 9) on his chest by ballam, appellant Achinta Kalsa threw arrow against Naru Gopal Maity and appellants Ajit Das and Ratan Das assaulted severely Tukubala Adak (P.W. 10), the mother of Gopal. Other appellants were in the group of the assailants and they fled away. It was learnt by him that a dacoity had been committed in the house of Satyeswar Bera.
On the complaint of P.W. 1, Lakshman Chandra Samanta, Sutahata P.S. Case No. 2 dated 4th of June 1982 under Section 147/148/149/448/326 and 307 IPC and under Section 6(3) of Indian Explosive Act was registered against the appellants and upon completion of investigation charge sheet was submitted against all of them under the aforesaid sections of law with addition of Section 302, IPC in view of Satyeswar Bera having succumbed to the injuries.
The learned Additional Sessions Judge, 6th Court, Midnapore framed charges against the 15 appellants as aforesaid under Section 148/302 read with Section 149/324 read with Section 149/323 read with Section 149 and 307 read with Section 149 against the appellants. Appellant Ajit Das, Ananda Das and Dinesh Kalsa were also charged with Section 5 of the Explosive Act. Upon trial the 15 appellants were convicted and sentenced in the manner as aforesaid.
Though prosecution examined 17 witnesses, evidence of P.W. 1, Lakshman Samanta, P.W. 2, Sukesh Maity, P.W. 5, Sankar Bera (son of the deceased Satyeswar Bera), P.W. 9, Gopal Chandra Adak, P.W. 10, Tukubala Adak and P.W. 11, Rash Behari Adak are worth considering in view of the fact that all of them claimed to be the eye-witnesses to the incident and of the said witnesses, P.W. 9, P.W. 10 and P.W. 11 are the injured witnesses.
Before we enter into the evidence of the principal witnesses let it be recorded at the outset that the defence case that it was not a case of assault by known persons upon Satyeswar Bera who later succumbed to the injuries in a hospital at Calcutta on 11th of June, 1982 and other persons; on the contrary it was a case of dacoity in the house of P.W. 5, Sankar Bera, the son of the deceased Satyeswar Bera and the appellants against whom the prosecution witnesses had animosity because of political rivalry have been falsely implicated.
We find from evidence of P.W. 1, P.W. 2 and P.W. 5 that there was a background to the incident. The accused persons admittedly are resident of different villages, namely Bahardab, Begunberia and Dandipur. They, according to the evidence of P.W. 1, P.W. 2 and P.W. 5 are members of a local club called 'Hatat Sangha'. At about 7 or 8 p.m. on the day of the incident they had come to the house of P.W. 5 to demand of Rs.10,000/- on account of a religious festival. When P.W. 1 and others reached the house of the deceased on hearing hue and cry the appellants went away. But they came again at 9-00 p.m. The house of P.W. 5 is in the village of Begunberia. P.W. 5's father has a Lakshminarayan Temple, near which there is an orchard of fruits. Also there is a 'pan boroz' of the deceased near the temple. The said temple as also the landed property of Satyeswar Bera fall in the mouza Bahardab. The house of Satyeswar, deceased is on the southern side of Bahardab village which is attached to Begunberia which again is adjacent to Dakshin Palli, and to the south of Paschim Palli is Dandipur village. There is a small canal, the width of which would be about 150/200 yards, which has stretched between Begunberia and Rupnarayan Chawk and northern side of the said canal there is mouza Bahardab. This is the location of the three contiguous villages comprises in one mouza which are adjacent to each other and while the house of the deceased is at Begunberia, his properties and temple are in mouza Bahardab which are adjacent to each other and houses of the appellants are in three villages, namely Bahardab, Begunberia, and Dandipur. However, the deceased refused payment and a quarrel ensued, there was an attempt to assault him.
Now P.W. 1 says in his evidence:-
"While we were sitting in the house of Satyeswar Bera, the accused persons along with Billapada Kalsa (since deceased) and some others came to the house of Satyaswar Bera about 30/45 minutes thereafter. Accused Panchanan and Debaprasad were armed with spear. Accused Ajit Das and Trilochan Barui were armed with lathis. Accused Achinta Kalsa was armed with bows and arrows. The other accused persons were armed with lathi, tangi etc. Accused Dinesh Kalsa and Bagambar Nayek were armed with bombs and they exploded bombs at the time of commission of the offence coming to the house of Satyeswar Bera at first. Accused Panchanan assaulted Satyeswar on his abdomen with a spear. Accused Debaprasad assaulted Gopal Adak by means of a spear. Accused Ajit Das and Ratan Das assaulted Tukubala Adak, mother of Gopal Adak with lathi. Accused Achinta Kalsa threw arrows which hit Narugopal Maity causing injury on his person. Accused Trilochan also assaulted Naru Gopal Maity and Ashutosh Middya with lathi."
On being injured Satyeswar Bera took shelter in the house of Milan Bera wherefrom police officer who had reached the spot on receipt of the FIR, rescued Satyeswar and took him to Tamluk Sub-Divisional Hospital by ambulance and then to P.G. Hospital at Calcutta where he died about 8 days after the incident.
P.W. 2 is a resident of Bahardab and his house is at the distance of 500- 600 yards from the house of the deceased. This witness narrated the background of the incident as above stated and then says which is as follows:-
"About 15/20 minutes thereafter, 15/16 persons came being armed with deadly weapons to the house of Satyeswar. Those persons are present in court today (identified the accused persons on dock). I found Bagambar Nayek, Ajit Das, Ratan Das, Achinta Kalsa, Uttam Mandal, Dulal Patra, son of Nidhu - identified Kalobaran Patra, Trilochan Barui, Ashoke Patra, Dinesh Kalsa, son of Nitya Patra (identified accused Saktipada), Panchanan Das, Debaprasad Kalsa, Paritosh Kalsa, Ananda Prosad Das and others in the house of Satyeswar Bera on the night of occurrence. They were armed with lathi, ballam, bombs, bows and arrows, iron rods etc. Accused Debaprosad Kalsa assaulted me on my left hand by means of a ballam. I sustained bleeding injury on my hand. Accused Achinta threw an arrow which hit my throat. At that time Dinesh Kalsa threw a bomb which exploded in the courtyard of Satyeswar. The occurrence took place on the verandah of Satyeswar.
The house of Satyeswar Bera is tin thatched. I was assaulted in the verandah of the house of Satyeswar Bera. Accused Panchanan assaulted Satyeswar Bera on his abdomen with a ballam. While I was trying to enter inside the house of Satyeswar, accused Trilochan assaulted me on my left shoulder with a lathi. Then I along with Satyeswar entered inside the house. We bolted the door from inside. Tapas, Ratan and some inmates of the house also entered inside the house. At about 1 a.m. in the night, daroga babu came to the house of Satyeswar Bera. I then opened the door."
P.W. 5, Shankar Bera, the son of the deceased gives the following evidence:-
"About 25/30 minutes thereafter all the accused persons (identified in dock) came to our house being armed with deadly weapons. Accused Dinesh and Bagambar were armed with bombs. Accused Panchanan was armed with ballam. Debaprosad was also armed with ballam. Ajit, Ananda and Uttam Mandal were armed with lathis. Achinta Kalsa was armed with bow and arrows.
Accused Dinesh and Bagambar threw bombs which exploded in our verandah and courtyard. Accused Panchanan Das assaulted my father by means of a ballam on the abdomen. Debaprasad Kalsa assaulted Naru Maity with a ballam. Achinta Kalsa threw an arrow which hit Naru Maity on his throat. My father and Naru Maity took shelter inside the room after being injured. I took my father to the house of Milan Bera through the back side door. The house of Milan Bera is intervened by one house."
P.W. 9, Gopal Adak is one of the injured persons. He says that when he was in the procession of immersion ceremony P.W. 5 came to him and reported that 8/9 persons of Hatat Sangha Club came to his father and demanded cash and those 8/9 persons included Panchanan, Debaprasad, Ashim and others. When he came to the house of P.W. 5 the accused persons had left. Then he says the following:-
"I along with Ratan Betal, Naru Maity, Tapan Midda @ Kanai Middya and some others remained in the house of Satyeswar and the rest returned to the immersion procession. About half an hour thereafter the accused persons along with others came to the house of Satyeswar Bera. Accused Panchanan and Deboprasad were armed with spear. The accused persons were armed with lathi, ballam, bombs, etc. They exploded bombs. Accused Panchanan, Ashim and Billa Das (since deceased) encircled me and also assaulted me. Ashim Patra assaulted me with the wooden handle of spear. I sustained injury on my person. Panchanan did not assault me. Panchanan asked others not to assault me.
Tukubala is my mother. On hearing my cry, my mother came there. My mother asked those persons not to assault me. At this, accused Panchanan, Asim and Billa Das assaulted my mother. My mother sustained injury on her person."
P.W. 9's mother is P.W. 10 who says as follows:-
"When I reached the house of Satyeswar, I found accused Panchanan, Ashim and Billa assaulting my son Gopal. I then asked them not to assault my son. At this accused Panchanan, Ashim and Billa also assaulted me with lathi. I sustained injury on my head and on other parts of the body. My son also sustained injury on his person.
Next day morning I along with my son went to Durgachak hospital where we were treated. We gave the history of assault before the doctor at Durgachak hospital."
P.W. 11, Rashbehari Adak is another injured who says as follows:-
"I was intercepted by Ajit, Ratan, Kalo, Uttam, Achinta. Ajit assaulted me with the handle of ballam and Ratan assaulted me with lathi. They asked why I was going to the house of Satyeswar Bera. They threatened me by saying why I was going to save Satyeswar Bera. I sustained injury all over my body. I have suffered permanent disability on my right hand due to assault. I narrated the incident to the para people. I along with Gopal and Tukubala went to Durgachak hospital where we were treated."
P.W. 6, Milan Bera in whose house the deceased took shelter after being assaulted by Panchanan and others turned hostile and pleaded ignorance of the incident. His evidence is of no positive use as he said nothing.
P.W. 7, Sudarshan Bera who according to the prosecution was an eye- witness to the incident was also declared hostile but he says that when police came at night in the village he found the deceased with injury in his abdomen. Interestingly, P.W. 8, Smt. Anulekha Bera who is the sister of P.W. 5 turned hostile since it appears that she belongs to the opposite camp in spite of being a relation by blood of P.W. 5.
P.W. 12, Kanailal Midda was declared hostile by the prosecution as claimed that he knew nothing about the incident.
P.W. 14, Ashutosh Midda who according to the FIR was an injured witness claimed in his evidence that on the night of the incident when he was returning home from his shop he heard some shouts near the house of the deceased and then out of fear he retreated and could not recognize anybody.
P.W. 3 is Dr. D.K. Debnath who held post mortem examination on the body of the deceased at N.R.S. Medical College and Hospital on 15th June, 1982 and found a number of injuries which according to the witness was sufficient in the ordinary course of nature to cause death. In fact, there was no cross- examination of this witness.
P.W. 16, Dr. H.P. Giri then Medical Officer of Durgachwak State Dispensary Hospital examined P.W. 9, Gopal Adak on 05-06-1982 and found the following injuries:-
"1. scalp injury on the left side of the forehead - 1" x ½" - lacerated and bleeding.
2. scalp injury near mid hair line in front - 1" x ½", lacerated and bleeding.
3. left side of the chest wall - 1" x ½" - cut injury infected, opposite to 7th rib.
4. right knee - haemo arthrosis.
5. right leg - haematoma about 1" diameter with abrasion blackish - ½" x ½".
Wound stitched and dressed. The patient was admitted in the hospital for treatment."
He also examined P.W. 10, Tanubala Adak and found the following injuries:-
"1. Scalp injury on the left parietal region 1" x ½" with haematoma and clot - laverated. On removal of the clot, bleeding was seen.
Wound stitches and dressed.
2. abrasion injury, blackish on both shoulders - left side - 1" x ½" with slight haematoma. Right side - 1" scratch mark.
Nature of injury was simple. She was admitted in the hospital."
This witness says that the injured patient P.W. 9, P.W. 10 and P.W. 11 told the history of assault with the words that at 9-00 p.m. on 04-06-1982 the assailants Billapada Kalsa (since deceased), Ashim Patra, Panchanan Das and others being armed with lathis and ballam caused assault on them. The witness says that the injury of P.W. 9 may be caused by sharp cutting instrument like spear, and P.W. 10 and P.W. 11 by lathi to be seen in the deposition sheet.
P.W. 4, Sibapada Majumdar, S.I. of Police held inquest on the body of the deceased at I.D. Hospital, Beleaghata on 14-06-1982, while P.W. 15 is the I.O. of the case.
Learned counsel for the appellants Smt. Pranati Goswami in support of the appeal urged the court to view the alleged incident as an incident of dacoity, pure and simple committed by some unknown assailants, not as an incident of attacking the house of P.W. 5 with a view to causing assault on the deceased and the other witnesses who are the inhabitants of the locality to satisfy any personal grudge as alleged by the prosecution. Thus, according to Smt. Goswami, the real assailants could not be made known and no amount of property was looted from the house of P.W. 5. It is submitted that the appellants have been falsely implicated out of political rivalry because evidence has it that the P.W. 5 and his father belonged to a certain political party, while the appellants belonged to the adversary. Secondly, it is submitted that there are plethora of discrepancies in the statements of the witnesses as to who assaulted whom, for example, in the FIR it has been stated that the appellants Ajit and Ratan assaulted P.W. 10 but P.W. 10 does not say that she was assaulted by Ajit and Ratan, and her evidence that she was assaulted by Panchanan, Ashim and Billa is contradicted by the evidence of P.W. 1 who says that Ajit and Ratan assaulted P.W. 10. Similarly, P.W. 9 who supported P.W. 10 with regard to the names of assailants of P.W. 10 stands contradicted by evidence of P.W. 1 as also the FIR. It is submitted further with reference to the evidence of the I.O. (P.W.
15) that P.W. 2, Sukesh Maity @ Naru Gopal did not mention before him the name of the assailants, namely Ajit, Ratan, Ashim, Uttam, Kalobaran, Dulal, Paritosh, Shaktipada and Ananta. Similarly, P.W. 2 did not state to the I.O. that Ashim assaulted him with the handle of the spear. Again, it is submitted that in terms of the FIR it was the appellant Debaprasad who assaulted P.W. 9 by means of ballam, while P.W. 9 says that he and his mother P.W. 10 were assaulted by Panchanan, Billapada and Ashim. The name of the injured Rash Behari Adak (P.W. 11) was not in the FIR. Yet P.W. 11 claims that he was assaulted by Ajit by means of ballam and by Ratan by means of lathi. It is submitted that P.W. 11 did not state to the I.O. that he was assaulted by Ajit by means of ballam. Again it is submitted that P.W. 2's evidence that he was assaulted by Debaprasad by means of ballam is contradicted by the evidence of P.W. 1 who says that P.W. 2 was assaulted by Achinta.
If we scan minutely the evidence of the witnesses involvement of the appellants Ananta @ Ananda Das, Paritosh Kalsa, Uttam Mondal, Kalobaran Patra, Dulal Patra @ Dulal Chandra Patra, Shaktipada Patra and Trilochan Bauri is not sufficiently proved although in one sentence their names have been mentioned as members of the group by P.W. 2 but which is not supported by the other witnesses. Though P.W. 11 did not tell the I.O. that Ajit assaulted him by means of a ballam he stated to the I.O. that he was assaulted by Ajit and Ratan. The FIR may not include the names of all the injured persons but P.W. 16 examined P.W. 9, P.W. 10 and P.W. 11. Their injuries cannot be brushed aside explained away and it is abundantly made clear that they are the eye-witnesses to the incident. As regards the identity of the assailants of P.W. 9 and P.W. 10 there is of course discrepancy between the FIR and the evidence of P.W. 9 and P.W. 10. While in the FIR the appellant Debaprasad was said to be the assailant of P.W. 9 and P.W. 10, P.W. 9 and 10 say that they were assaulted by Panchanan, Billa Pada and Ashim. Of the three Billapada is dead, while Ashim has been dealt with under the Probation of Offenders Act. Achinta is the assailant of P.W. 2 as is the claim of P.W. 2 and is corroborated by the FIR, and also evidence of P.W. 1. Achinta assaulted him by throwing arrow and this is the consistent evidence of P.W. 1, P.W. 2 and P.W. 5. It has further come out from evidence of P.W. 1, P.W. 2 and P.W. 5 that Dinesh and Bagambar threw bombs. Though P.W. 2 says that he was assaulted by Trilochan this piece of evidence is not satisfactorily supported by other witnesses. As regards the appellant Panchanan it is he who alone caused assault on Satyeswar Bera and who is the cause of death of him. There is consistent and clear evidence against Panchanan in this respect. It has further come out from evidence of P.W. 2 and P.W. 5 that it was Debaprasad who assaulted P.W. 2 by ballam and this has been mentioned in the FIR also. As regards Ajit and Ratan their presence has been testified to by the witnesses at the scene of the crime but with respect to the allegation in the FIR that they caused assault on P.W. 10 there is discrepancy between the FIR and the evidence of P.W. 9 and P.W. 10 in this respect.
With respect to the submission of Mrs. Goswami that some unknown dacoits came to the house of P.W. 5 to commit dacoity can hardly be accepted. Although in the FIR P.W. 1 said that it was learnt by him that the dacoits have entered into the house and although P.W. 1 gave the hearsay evidence that he heard from village people that a dacoity had taken place in the house of P.W. 5 it is not a case of dacoity, not a single movable property has been looted from the house of P.W. 5. When hue and cry was raised and the witnesses were attracted by hue and cry they took it to be the case of dacoity because the incident took place at 9-00 p.m. The argument of Smt. Goswami that the unknown dacoits committed the dacoity is unacceptable for number of reasons. It has become abundantly clear that the defacto-complainant and P.W. 5 belonged to one political party while the accused persons belonged to the other. Though the accused persons belonged to three different villages and P.W. 5 also belonged to one of such villages it cannot be said that all the three villages are situated at far off places. The matter of the fact is that the temple of the deceased falls under Bahardab village, while his homestead is at Begunberia. Begunberia, Bahardab and Dandipur are all adjacent to one another and it has come out from evidence of P.W. 2 that his house at Bahardab is at a distance of 500/600 yards from the house of the deceased. It must not be lost sight of the fact that between 7 and 8 p.m. on the night of the incident the appellants had come to the house of P.W. 5 to ask the deceased to part with Rs.10,000/- which the deceased refused. They had been threatened with consequences. The deceased raised hue and cry and being attracted by hue and cry the witnesses came and in their presence after a little while the appellants came being armed with weapons assaulted Satyeswar, P.W. 2, P.W. 5, P.W. 9, P.W. 10 and P.W. 11. Both the parties were known to each other. It was the night of immersion of the Goddes Manasa. There was no question of non-identification of the appellants because both the parties belonged to the same locality and the incident has to be recorded as one of causing assault of Satyeswar Bera and others being armed with weapons and being animosity with common object. Learned advocate for the appellants submitted that P.W. 9 and P.W. 10 were examined by the I.O. on 20th of September, 1982 while the incident took place on 04-06-1982 and as such evidence of these two witnesses should not be believed. In fact, because of delay in examination of P.W. 9 and P.W. 10 by the I.O. there occurred a discrepancy as regards the names of the assailants of P.W. 9 and P.W. 10 between the FIR and the evidence of P.W. 9 and P.W. 10. But it must not be forgotten that they were the injured persons and they said Panchanan, Ashim and Billa assaulted them. It has been submitted by Smt. Goswami that P.W. 6, P.W. 7, P.W. 8, P.W. 13 and P.W. 14 were examined by the I.O. near about a year after the incident. All these witnesses are hostile witnesses and the learned Judge in the trial court has not founded his judgment and order on the basis of evidence of these witnesses. The distance between the police station and the place of occurrence is 10 km. and the FIR was lodged within 2 hrs. 45 minutes from the time of the incident.
Mrs. Goswami submitted that the incident that allegedly took place between 7 and 8 p.m. on 04-06-1982 has not been mentioned in the FIR. Non- mentioning of the background of the incident has not been fatal to the prosecution case because the background has been narrated quite in great details by the witnesses.
The result of the analysis will be as follows:-
(a). Charge under Section 148 IPC is substantiated against the appellants, namely Panchanan Das, Debaprasad Kalsa, Ajit Das, Ratan Das, Bagambar Nayek, Dines Kalsa, Achinta Kalsa and Ashim.
(b). There is no sufficient evidence against Ananta @ Ananda Das, Paritosh Kalsa, Uttam Mondal, Kalobaran Patra, Dulal Patra, Saktipada Patra and Trilochan Barui and accordingly they shall be found to be not guilty of the charges and are acquitted of all the charges.
(c). As regards Ashim Patra his conviction is sustained but as he has been dealt with under Section 4 of the Probation of Offenders Act no order is necessary on the question of sentence as against him.
(d). As regards charge under Section 323/149 IPC the same is found to have been substantiated against Debaprasad Kalsa and Achinta Kalsa.
(e). As regards charge under Section 304 (II) read with Section 149 IPC it has to be stated here that evidences do not show that intention of all the appellants was to cause such amount of injury as would likely cause death except Panchanan who dealt with a severe blow near the abdomen of Satyeswar Bera. None of the appellants hit him and it is doubtful whether other appellants had really an intention to cause such amount of injury as they knew it likely to cause death of Satyeswar Bera. Therefore, charge under Section 304 (II) cannot be conjoined with Section 149 IPC. It was a singular act of the appellant Panchanan Das. Therefore, Panchanan Das has to be convicted under Section 304 (II) on account of death of Satyeswar Bera.
(f) As regards sentence the eight appellants were convicted by the learned trial court to suffer R.I. for two years on account of the charge under Section 148 IPC and having considered the submission of Smt. Goswami that as most of the appellants were of young age their sentence on account of this charge may be reduced. Accordingly, the eight appellants are sentenced to suffer R.I. for six months on account of the charge under Section 148 IPC.
(g) Appellants Debaprasad Kalsa and Achinta Kalsa are also sentenced to suffer R.I. of 1 year on account of the charges under Section 149 read with Section 323 IPC.
(h) As regards the charge under Section 304 (II) IPC 149 the sentence of 5 years in respect of the appellant Panchanan Das is maintained with payment of fine of Rs.500/- in default to suffer R.I. for 6 months more.
Sentences of the appellants convicted of more than one charges will run concurrently.
Thus, the appeal is allowed in part.
The appellants Panchanan Das, Debaprasad Kalsa, Ajit Das, Ratan Das, Bagambar Nayek, Dinesh Kalsa and Achinta Kalsa shall surrender to the learned Additional Sessions Judge, 6th Court Midnapore (now Paschim Medinipur) to serve out the sentence within a month from the date of this judgment failing which the learned Trial Court will take appropriate steps for apprehension of the appellants to have the sentence executed in accordance with the law.
A copy of this judgment shall be sent to the learned Additional Sessions Judge, 6th Court, Midnapore for information and necessary action.
(Partha Sakha Datta, J.)