Calcutta High Court (Appellete Side)
Kalipada Sardar vs The State Of West Bengal on 23 August, 2013
Author: Asim Kumar Ray
Bench: Jayanta Kumar Biswas, Asim Kumar Ray
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
C.R.A. No. 301 of 2008
Kalipada Sardar
-Vs-
The State of West Bengal
Present :
The Hon'ble Justice Jayanta Kumar Biswas
And
The Hon'ble Justice Asim Kumar Ray
For the Appellant : Mr. Milon Mukherjee
For the State : Mr. Manjit Singh, P.P.
Heard on : July 29,2013
Judgment on : August 23,2013.
Asim Kumar Ray, J.
This appeal is directed against the judgment and order dated April 30,2008 passed in Sessions Trial No. XXVII (March)/2006 by learned Additional District and Sessions Judge, Fast Track Court, Ghatal, Paschim Midnapore whereby appellant Kalipada Sarder was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 300/- in default to suffer rigorous imprisonment for two months more for the offence punishable under s. 326 of IPC. He was found not guilty for the offence punishable under ss. 448/308 of IPC and has been acquitted of the said charges.
Factual matrix of the prosecution case is that Sishu Singh , victim returned home from his work. He did not find his daughter in the home. His daughter went to his neighbour's house to see television. He was calling her in a loud voice. At that time, his neighbour accused Kalipada Sardar came to his house and threatened him. Kalipada left the house of Sishu and after a few minutes returned with a broken bottle made of glass. He assaulted Sishu with that broken bottle causing severe bleeding injury on his face and eyes. He was taken to Ghatal Hospital and admitted there. The doctor opined that Sishu might have lost his vision on the right eye. One Basudeb Singh lodged the FIR with Daspur Police Station on February 5, 2005 around 00.25 hours. On the basis of the said FIR Ghatal P.S. case No. 10 of 2005 dated February 5,2005 under ss. 448/326 of IPC was registered.
The case was investigated. On completion of the investigation charge sheet under ss. 448/326/308 of the IPC was submitted against the accused Kalipada Sardar .
The then learned Sub-divisional Judicial Magistrate, Ghatal took cognizance of the offence and committed the case to the learned Court of Sessions, Paschim Midnapore. On receipt of the case the learned Sessions Judge, Paschim Midnapore transferred the same to the learned Additional District and Sessions Judge , Fast Track Court, Ghatal for trial and disposal. The charge against the accused person Kalipada Sardar under ss. 448/326/308 of IPC was framed. It was read over and explained to him to which he pleaded not guilty and claimed to be tried.
In course of trial 16 witnesses were examined. Written FIR, bed head ticket of Sishu Singh, discharge certificates, seizure list, etc. and broken glass bottle were marked as exhibits. On appreciation of evidence accused Kalipada Sardar was found guilty to the offence punishable under s. 326 IPC and sentenced accordingly. So this appeal.
Mr. Milon Mukherjee, learned Senior counsel appearing for the appellant has contended that the finding of the learned trial Court may be interfered with as there is no ingredient to attract s. 326 of IPC. The hurt alleged to have been received by victim Sishu Singh was not a grievous hurt as it does not satisfy the requirement of s. 320 of IPC.
Inviting attention to the sketch map, he has contended that there was no source of light at the vicinity of the place of occurrence. So the question of witnessing the alleged incident by the neighbour and others does not arise. There is discrepancy regarding the seizure of bottle. The evidence on record is not specific as to whether the seized bottle was a broken one or not. Seizure witnesses have not supported seizure. The evidence of the Investigating Officer regarding the seizure differs from that of the evidence of the wife of the victim.
Mr. Mukherjee has drawn our attention to the First Information Report and has contended that the name of the scribe is not appearing from it, though the F.I.R. maker has stated in his evidence that the FIR was written by one Nirmal Chhatik who has not been examined as prosecution witnesses. There is no evidence on record specially from that of doctors that the victim sustained permanent privation of his sight of right eye. The impugned judgment may be set aside.
Mr. Manjit Singh, learned Public Prosecutor appearing for the State has contended that there is specific evidence on record that the victim was assaulted by accused Kalipada Sardar and as a result he sustained injury on his face particularly on his right eye. He was taken to the hospital. and admitted there for treatment. Prosecution witnesses have stated in the same tune regarding assault on the victim by the accused person. Glass bottle, the weapon of assault has been seized and exhibited. Prosecution has proved the case. The impugned judgment and order of conviction may not be interfered with.
Accused has faced charges under ss.328/448/308 of IPC. He was found guilty to the charge under s. 326 of IPC and convicted. He was found not guilty to rest charges. Prosecution witnesses may be classified into four categories :
i ) Eye witnesses and victim
ii) Seizure witnesses iii )Doctors
iv) Police personnels.
Eye witnesses are P.W. No. 1, P.W. No.2, P.W. No. 6 and P.Ws 8 to
10. They are either relative or neighbour of the victim Sishu Singh. The FIR maker, P.W.No. 1 is the nephew of the victim. He has stated in his evidence that:-
"The occurrence took place on 21st day of Magh 1411 B.S. at about 7 p.m. in the courtyard of the house of my uncle Sishu Singh. On the day of occurrence my uncle Sishu Singh came back home after completion of his work of cultivation in the filed at about 7 p.m. After arrival he did not find anybody in his house and then he began to call his daughter Archana loudly. At that time Archana went to a neighbouring house belonging to Biswanath Kha to enjoy television programme. At that time accused Kalipada Sardar also came back home selling country liquor. As my uncle was calling Archana in a loud voice the accused came out of his house and came to the house of my uncle and abused him in filthy languages and also assaulted my uncle. Then myself, my wife Mitali Singh and my aunt Namita Singh came to the spot and separated accused from my uncle. Then the accused returned home. Thereafter the accused again came to the courtyard of the house of Sishu Singh with a broken glass bottle and attacked my uncle Sishu Singh with that broken bottle on his face and the accused gave the stroke with that broken bottle on the nose, forehead, eyes and cheek of Sishu Singh. As a result Sishu Singh sustained severe bleeding injury and became senseless. At the time of assault on Sishu Singh by the accused with that broken glass bottle myself, my wife Mitali Singh, my aunt Namita Singh, Sannyashi Kha, Madhu Kha, Kalpana Sardar, Jharna Kotal, Prasanta Kotal and other persons of the locality were present. Thereafter myself, Prasanta Kotal, Kalipada Kotal, Madhusudan Kha had taken my uncle Sishu Singh to Hospital for treatment and he was admitted to the Hospital. At first Sishu Singh remained admitted to the Ghatal Hospital for about six days and then he was discharged from the hospital. After two/three days Sishu Singh was again admitted to the Ghatal Hospital for two/three days. Sishu Singh had lost his vision of right eye for ever due to that assault on him with the broken glass bottle by the accused person.
In the night of occurrence at about 1 a.m. I lodged a written complaint at the Ghatal Police Station regarding assault on my uncle by the accused. The said written complaint was written by Sri Nirmal Chhatik as per my dictation and then he read over the same to me and then I put my signature in the written complaint. This is my said written complaint and this is my signature in the written complaint. The written complaint dated 06/02/2005 is marked Ext. 1 and the signature of witness in it is marked Ext.1/1 while my uncle was admitted in Ghatal S.D.Hospital we came to learn from the doctor that the condition of the right eye of my uncle was very bad and after operation even he could not get his vision and doctor asked us to take Sishu Singh to Kolkata for better treatment. As we are very poor we asked doctor to perform the operation at the Ghatal hospital and we gave our consent for the operation even if Sishu Singh lost his vision for ever."
The FIR was submitted on the next day. The evidence of the FIR maker corroborates with the FIR. Rest eye witnesses stated alike the FIR maker in their evidence. On effective cross-examination of the eye witnesses their evidence remained unshaken. On analysis of the evidence of the aforesaid witnesses it is evident that the victim and accused are close neighbour. They reside side by side in the same bastu. The victim returned home from work of cultivation on 21st Magh, 1411 B.S. corresponding to February 4, 2005 at about 7 p.m. Her daughter Archana Singh, P.W. No. 8 was away from home to enjoy a television programme at the house of his neighbour Biswanath Kha. He was calling his daughter in a loud voice. Accused threatened and abused him. He slapped him too. He left the place for a while but returned back with a broken glass bottle. It is further evident from the oral evidence of the eye witnesses that he assaulted the victim with the help of broken glass bottle and as a result the victim sustained bleeding injury on his face and particularly on his right eye. He was taken to Sub- divisional Hospital, Ghatal for treatment. He was admitted there.
The victim, P.W.11 has stated about the incident in the same tune like that of FIR maker and eye witnesses. The evidence of the victim got substantive corroboration from the eye witnesses. It is unambiguous and unimpeachable .
In this case four doctors have been examined. They are P.W. No. 7, P.W. No. 13, P.W. No. 14 and P.W. No. 15. All the aforesaid P.Ws are Medical Officers of Ghatal Sub-divisional Hospital.
Dr. Kamal Chatterjee, P.W.No. 7 has stated in his evidence "that on February 4, 2005 Sishu Singh aged about 45 years was admitted under him in the male ward through emergency of the hospital. He examined him and found the following injuries :-
i) Lacerated injury approximately half inch over forehead;
ii) Lacerated injury approximately half inch over nasal bridge; and
iii) Injury on his right eye for which he was referred to eye surgeon for necessary measures.
Eye injury of the patient was very serious and grievous in nature. The injuries on the forehead and nasal bridge were simple in nature. The patient was discharged on February 10, 2005."
He was subjected to cross-examination and has stated that the patient consumed alcohol and smell of alcohol was coming from his mouth.
Dr. Jayanta Sasmal, P.W. No. 13 has stated alike Dr. Kamal Chatterjee, P.W.No. 7 that smell of alcohol was coming from the patient. On examination of the patient/victim, he found multiple injuries over the face. He also found right eye injury of the patient. But he did not note in the treatment sheet about the nature of injury. He referred the patient to the N.R.S. Medical College and Hospital for better treatment.
Dr. Amit Chattjerje, P.W.14 has stated that he examined the patient on February 4, 2005 and found the following injuries: -
1) One cut injury of right lower eyelid.
2) Cut injury of right cornea with expulsion of irish and vitreous through the wound.
3) Poor prognosis explained to accompany person.
He has further stated that he referred the patient to R.I.O., Calcutta for better treatment. The patient was discharged by him on February 18, 2005. He was subjected to cross-examination. He has stated in course of cross-examination that the patient did not state about the history of injury. The patient did not state to him that he was unable to see anything through his right eye. It is not mentioned in the treatment sheet that the patient may lose his eye sight in future.
Dr. H.S.Manna, P.W.15 an eye specialist, has stated that he conducted operation in the right eye of the patient on February 5, 2005. On examination he found the injury on the right eye of the patient. The injury of the right eye involving the cornea, sclera and irish. He has further stated that the patient may lose his eyesight due to such type of injury. The rupture globe of the said patient was repaired and he has mentioned the same in the bed head ticket dated February 5, 2005. The patient was discharged on February 10, 2005. In his cross-examination he has stated that it is not mentioned in the treatment sheet that the patient is unable to see anything at the time of his treatment. He did not mention the nature of injury of the patient in the treatment sheet. It was not mentioned in the injury report that the injury of patient was grievous.
On analysis of the aforenoted oral evidence of four doctors it is evident that on February 4, 2005 the victim Sishu Singh was admitted at Sub-divisional Hospital, Ghatal under the care and management of Dr. Jayanta Sasmal, P.W.7. He was examined by all the four doctors who found injury on the face and right eye of the victim. The injury of the right eye of the victim was repaired through operation. Two doctors have stated that the injury was serious and grievous and the rest two did not state anything about the nature of injury in the treatment sheet/bed head ticket of the patient. There is no evidence from the experts/doctors that the patient has lost his sight in the right eye permanently. The patient was referred to N.R.S. Medical College and Hospital, Calcutta but he has not visited the said hospital. He was treated for the period from February 4, 2005 to February 10, 2005 and thereafter he was again treated in the Sub-divisional Hospital, Ghatal upto February 18, 2005.
Madhu Sudan Kha, P.W. No. 3 and Sannyasi Kha, P.W. No. 4 are the seizure witnesses. Madhu Sudan Kha was declared hostile. He has stated in his evidence that he did not see any incident of assault by Kalipada Sardar upon Sishu Singh as he was not present in the locality at that time. In his cross-examination, he has stated that his signature was taken by police officer on a paper after 2/3 months of the date of occurrence sitting in the courtyard of Sishu Singh. He was not present at the time of seizure of broken bottle. Sannyasi Kha has stated alike Madhusudan Kha but not declared hostile by the prosecution. He has specifically stated that after 2/3 months of the date of occurrence he signed the seizure list in the courtyard of Sishu Singh. He was not present at the time of seizure.
Namita Singh, P.W.No. 10 is the wife of victim. She is an eye witness. She has stated about the seizure of broken glass bottle in course of her evidence. She has stated that the police seized broken glass bottle with which the accused hit her husband's right eye. In her cross-examination she has stated that she collected the bottle and preserved the same in her house. On 26th Magh, 1411 B.S. she handed over that bottle to police.
Jayanta Chakraborty, P.W.12 was Officer-in-Charge of Ghatal P.S. at the relevant point of time. He has stated that on receipt of the written complaint from Basudev Singh, P.W.1 on February 5, 2005 at 12.25 at night he started Ghatal P.S. Case No. 10 of 2005 dated February 5, 2005. He drew up the formal FIR and endorsed the case to Sub-inspector Basudev Das Bairagya, P.W. No. 16 for investigation.
Basudeb Das Bairagya, P.W. No. 16 is the Investigating Officer. He took up the investigation of the case. In course of investigation he arrested accused Kalipada Sardar. He seized one broken bottle (Mat Ext.-1) from the courtyard of the victim and on completion of the investigation submitted charge sheet.
On analysis of the aforesaid evidence it is evident that the seizure of broken glass bottle has not been supported by the seizure witnesses Madhusudan Kha and Sannyashi Kha. The investigating officer has stated that he seized the broken glass bottle from the courtyard of the victim whereas the victim's wife has stated that after the incident she kept the bottle in her house and handed it over to the investigating officer at the time of seizure. The factum of seizure of broken glass bottle appears to be not impressive.
The evidence of eye witnesses P.W. No. 1, P.W. No. 2, P.W. No. 6 and P. W. Nos. 8 to 10 is specific regarding the date, time and place of incident. Their evidence is corroborating with each other. It remained unshaken that the victim was assaulted by accused Kalipada Sardar and as a result he sustained bleeding injury on his face and right eye. The victim was taken to Sub-divisional Hospital, Ghatal just after the incident. He was admitted there as indoor patient under the care and management of Dr. Jayanta Sasmal, P.W.No. 13. All the doctors on examination of the patient found lacerated injury on the face and right eye of the patient. The evidence regarding infliction of injury on the patient/victim by accused Kalipada Sardar remained unshaken. The oral evidence of the victim, prosecution witnesses specially the eye witnesses and the doctors corroborates with the documentary evidence i.e. Ext.1/FIR, Ext.4, Ext. 4/1-written note of doctor Kamal Chatterjee, P.W.13 on bed head ticket, Ext. 6-Referral card of patient Sishu Singh dated 4-2-2005, Ext. 7-bed head ticket under the handwriting of Dr. Amit Chatterjee, P.W.14, Ext.8- treatment sheet dated 4-2-2005, Ext. 9 to 11-discharge certificates of the patient under the handwriting of Dr. Amit Chatterjee, P.W.14, written note of Dr. H.S.Manna , P.W.15. The factum of assault and the resultant injury of the victim have been proved by substantive evidence.
Now the question comes in whether the injury sustained by the victim at the instance of accused Kalipada Sardar is a grievous injury or otherwise. It is relevant to go through Section 320 of the IPC. Section 320 deals with grievous hurt which runs as follows: -
"320. Grievous hurt The following kinds of hurt only are designated as 'grievous':-
First.-Emasculation.
Secondly.- Permanent privation of the sight of either eye.
*** Eighthly-Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
Section 326 of the IPC deals with the punishment of grievous hurt which runs as follows: -
"326. Voluntarily causing grievous hurt by dangerous weapons or means.
Whoever, except in the case provided for by section 335,voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting , or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance , or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
We have discussed the evidence on record. We have taken meticulous note about the evidence of victim, eyewitnesses and doctors. Eye witnesses including the victim have stated that the victim has lost his right eye sight. The evidence of doctor is not specific regarding the nature of injury of right eye. Two doctors have stated that the injury sustained by the victim on his right eye is serious and grievous. The evidence of rest two doctors are not specific about the nature of his such injury. There is no evidence from the doctors that the victim has sustained permanent privation of his sight in his right eye.
It is evident from the evidence on record that the victim was taken to Sub-divisional Hospital, Ghatal on February 4,2005 and remained there as indoor patient till February 10, 2005 in the first phase. Thereafter after lapse of 2/3 days he was again admitted in the said hospital and was treated as indoor patient like before. He was discharged on February 18, 2005. On plain calculation we find that the victim was confined in hospital bed for 10/12 days. In the case in our hand we do not find any evidence that the sufferer i.e. victim was in severe bodily pain for 20 days. There is no evidence that he was unable to follow his ordinary pursuits during the said period of twenty days. We do not find convincing evidence regarding permanent privation of sight of the victim.
Taking the aforesaid backdrop in judicious mind we are of the considered opinion that the offence does not fall within the category of grievous hurt and as a result the same is not punishable under s. 326 of IPC. It is at best a case of simple hurt coming within the ambit of s. 324 of IPC.
The admitted position is that the appellant/ convict has been sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of . Rs. 300/- in default to suffer rigorous imprisonment for two months. He has admittedly already suffered detention for more than 6 years. The punishment of the accused may be extended to 3 years or with fine or with both if the offence is punishable under s. 324 of IPC. Taking the evidence on record in its totality and the aforesaid backdrop in mind we are of the opinion that the purpose of justice will be served if the order of conviction is modified to the above extent. The judgment and order dated April 30, 2008 passed in Sessions Trial No. XXVII(March)/2006 by learned Additional District and Sessions Judge, Fast Track Court, Ghatal, Paschim Midnapore is modified accordingly.
In the result , the appeal is allowed in part and stands disposed of.
The appellant/convict Kalipada Sardar be released forthwith, if not wanted in any other case.
Urgent Photostat certified copies of this order, if applied for, be given to the parties on usual undertaking.
I agree, ( Jayanta Kumar Biswas, J.) ( Asim Kumar Ray, J. )