Calcutta High Court (Appellete Side)
In Re: Sunil Kumar vs State Of West Bengal on 13 February, 2015
Author: Samapti Chatterjee
Bench: Nishita Mhatre, Samapti Chatterjee
.Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Samapti Chatterjee
C.R.A 667 of 2005
In Re: Sunil Kumar
Vs
State of West Bengal
With
CRA 658 of 2005
In Re: Niranjan Kumar & Ors
Vs
State of West Bengal
For the Appellants : Mr. Apurba Krishna Das
Mr. Sukhendu Bikash Mukherjee
For the State : Mr. Manjit Singh, Learned P.P
Mr. Atif Ahmed Siddique
Heard on : 12.11.2014 & 13.11.2014
Judgment on : 13th February, 2015.
Samapti Chatterjee, J.
1. The instant appeals are directed against the Judgment and Order of conviction passed in Sessions Trial No. 22 of 2004 and Sessions Case No.150 of 2004 passed by the learned Additional Sessions Judge, 1st Court, Purulia on 30th August, 2005 holding the appellants guilty of offence punishable under Section 325/34 of the Indian Penal Code and sentenced to suffer imprisonment for three years and to pay a fine of Rs.500/- each, in default to suffer further six months Rigorous Imprisonment more.
Convict Sunil Kumar was also sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/- only, in default to suffer six months more imprisonment for the offence punishable under Section 302 of the Indian Penal Code.
2. Put in a short frame, the prosecution case runs as under:-
One Rohin Kumar lodged a complaint in 14.07.1999 at about 8.15 hours at Joypur P.S. stating, inter alia that on that day i.e. on the date of 'Ratha Jatra' he straight-way went to Joypur P.S. along with his injured father-Lalu Kumar and reported that in Ritudih Mouza they have their landed property and their uncle-Kuilu Kumar had also landed property. The land of Lalu is situated four feet higher than that of the land of Biswanath @ Bishu Kumar; for the last few days it was raining continuously for which in that land of Lalu water accumulated and it was needed to release the said water. Lalu released the same through a 'Nala' and the released water was filling the land of Biswanath Kumar; but on the day previous to the day of incident Biswanath Kumar and his son Sunil Kumar and Laxmiram Kumar blocked that Nala through which water was passing from the land of Lalu and on the day of incident in the morning hours Lalu Kumar after noticing that situation reported the matter to his family members. At about 7 a.m. on the day of incident Lalu Kumar and his son including one Birbal Kumar, Kuilu Kumar and Chamtu Kumar went to cultivate their respective lands. When the complainant and others reached near that place at that time Bishu Kumar and his five sons were found standing on the northern side of the land of Lalu. At that time Lalu removed mud from the portion of the Nala as a result the accumulated water began to fall on the land of Bishu Kumar and as a result Bishu Kumar and his five sons began to pelt stones and brick bats etc aiming at them and one brick bat hit Lalu in his head. They saw that the said accused persons were continuously throwing stones and suddenly Sunil Kumar threw a bomb which was in his hand and that bomb hit Kuilu on his back and Kuilu Kumar fell down with grievous injuries and they fled away and considering the condition of his father he took his father to local Hospital wherefrom he went to Joypur P.S. along with his injured father.
On the basis of the above written complaint Joypur P.S. Case No.37 of 1999 dated 14.07.1999 was started and on investigation charge-sheet was submitted against the accused persons under Section 302 and 325/34 of the Indian Penal Code. Accordingly trial started and after completion of trial the learned Trial Judge convicted the appellants as aforesaid.
3. During course of trial prosecution has examined as many as 26 witnesses to prove its case.
P.W.1, did not see the incident actually and was declared hostile by the prosecution.
4. P.W.2, was a villager and signatory of the inquest report.
5. P.W.3 was not a necessary witness. He knew nothing about the incident.
6. P.W.4 was the seizure list witness who was subsequently declared hostile by the prosecution.
7. P.W.5 was the seizure list witness and was declared hostile by the prosecution.
8. P.W.6 was a villager and hearsay witness.
9. P.W.7 , was the son of deceased Kuilu Kumar.
10. P.W.8 was a villager who was declared hostile by the prosecution.
11. P.W.9 was a villager was also declared hostile by the prosecution.
12. P.W.10, younger brother of deceased Kuilu Kumar and also an eye witness who in his evidence stated that on 14.07.1999 at about 7 a.m. Indrajit and Kuilu went to plough their land situated within Ritudih Mouza when they found that altercation was going on between Lalu and Biswanath and his five sons regarding release of accumulated water in the land of Lalu and thereafter Biswanath and his five sons began to pelt brick bats aiming at Lalu and due to pelting brick bats Lalu sustained bleeding injuries and at that time Lalu was running towards their field shouting "Save me, save me". Then Kuilu asked Biswanath and others not to throw brick bats and requested them to stop. At that time suddenly Biswanath's other sons asked Sunil to charge bomb and then Sunil threw a bomb aiming at Kuilu Kumar. The said bomb hit Kuilu Kumar on his back and being injured by that bombing Kuilu fell down, sustaining severe bomb injury on his back and after seeing that P.W.10 became puzzled and finally lost his sense. After arrival of police P.W.10 regained his sense and found that Kuilu died at spot. He further deposed that from place of occurrence he went to P.S. and the police verbally examined him. Police reached at the scene of occurrence almost one hour after the time of incident.
13. P.W.11 was a hearsay witness.
14. P.W.12 was a villager.
15. P.W.13 was a villager.
16. P.W.14 was the defacto complainant and also the seizure list witness who in his evidence stated that the incident took place in their plot of land within Ritudih Mouza. He was in his plot. At that time initially Ajit , Laxmiram, Sunil, Mukundo and Niranjan chased him and his father and they were pelting brick bats aiming at them and for that reason his father Lalu sustained bleeding injury on his head and they (Biswanath's sons) became furious because his father dug the Nala (drain) situated at the end of their land to release accumulated water of their land. When they (Biswanath's sons) were running towards Kuilu Sunil threw a bomb aiming at Kuilu and Kuilu fell down with pool of blood and Kuilu died on spot. The said bomb hit Kuilu on his back. He further stated that when he saw that his father sustained severe bleeding injury, he carried his father away to local hospital at Joypur. He further deposed that at the time of incident Indrajit, Birbal, Kuitu, Chemba were in the scene of occurrence. He also deposed that his father was treated at Joypur Hospital and thereafter his father was referred to Purulia Sadar Hospital. Therefrom his father was referred to Bankura Medical College and his father was admitted there for about 13 days. He could not say whether dead body of Kuilu was recovered by police. P.W.4 further deposed that though he went to the police station but he could not recollect what he did but narrated the fact of incident to police officer at the police station. Thereafter he took his father to the Joypur Hospital. He was also the signatory in the inquest report (Exbt.1(b). He was also the signatory of the seizure list (Exbt.2(b). He also narrated the incident before the Magistrate under Section 164 of Cr.P.C (marked as Exbt.3, 3a, and 3b) respectively.
17. P.W.15 was a villager.
18. P.W.16 was the Doctor who first treated the victim stated that he was told by the patient party that victim received bomb injuries. On examination he found the patient was semi-conscious. On examination he also found the following injuries:
(1) Lacerated injury over fore head skin lost-present, and fracture of the skull bone on the frontal region seen which was depressed fracture and active bleeding was present.
(2) Small incised looking wound over occipital region 2"cm X 2" cm.
Both the injuries were fresh. Treatment given and injury was bandaged and dressed.
Patient was referred to Purulia Sadar Hospital for further treatment. Injuries were grievous in nature. Injuries may be caused due to fall ' or for bomb injuries or due to pelting of stone or brick batting.
19. P.W.17 was the Constable who carried the dead body to the morgue.
20. P.W.18, was the Amin of B.L. & L.R.O. of Joypur Block.
21. P.W.19 was the photographer who stated in his evidence that negatives were not produced before the Court.
22. P.W.20 was the cousin of the victim who in his evidence stated that accused Sunil Kumar threw bomb at Kuilu Kumar's back and Kuilu died on spot. Then he was just in front of Kuilu. He also deposed that his land was just adjacent to the land of Kuilu. On that very day at about 7 a.m. he went to his land to release accumulated water from his land and for that purpose he was digging a Nala (narrow drain) at his land which was just beside the land of Biswanath. While P.W.20 was digging the Nala to release the accumulated water then Sunil, Laxmiram, Kukundu, Ajit, Bhaku (Niranjan) and Biswanath began to pelt brick bats available at the field and after being assaulted P.W.20 sustained injuries on his scalp and also on his forehead with profuse bleeding. At that time his son Rahim Kumar was also present there and he asked his son to take him to hospital. Then Sunil Kumar threw a bomb aiming at Kuilu from back and Kuilu sustained bleeding injury and fell down and died on spot. Thereafter being injured P.W.20 was taken by his son Rahin to police station first and police station referred him to PHC and there from to Purulia Sadar Hospital and thereafter he was taken to Bankura Medical College Hospital for better treatment and he was at the hospital for some days. He further stated that though being assaulted he did not loose his senses but on the way to hospital he lost his senses.
23. P.W.21 was the Autopsy Surgeon who examined the dead body of deceased Kuilu Kumar on 14.07.1999 and prepared post-mortem report. He stated that :-
"There is exclusive lacerated wound scapula region 8" X 5" X deep to chest cavity. On dissection there was fracture of right scapula a lacerated wound in right lung. Fracture of 4th to 8th prostuiorly.
From the depth of the wounds 1. Two iron pieces 2. Cords of jutes 3. Pieces of clothes 4. Pieces of papers were collected and handed over to attending police constable. There was blackish discoloration on the wound margin also sign of illegible found on the wound margin (From the Post Mortem report the illegible word appears to be "hairs").
He opined that the death was due to said injury ante mortem in nature and said injury was caused due to bomb blasting and death was homicidal in nature.
He further deposed that foreign particles were not produced in Court.
24. P.W.22 villager, who in his evidence stated that at the relevant time the dispute cropped up between Lalu Kumar and Biswanath regarding digging of 'Nala' by Lalu Kumar. As a result Biswanath, Sunil, Ajit, Mukundo, Niranjan Laxmiram began to pelt stones and brick bats aiming at Lalu Kumar. Just to save himself from that attack Lalu proceeded towards his father, at that time Sunil threw a bomb aiming at his father and being injured his father fell down and died on spot. He further deposed that due to such incident of pelting stones and brick bats Lalu sustained injuries on his head and Rahin (son of Lalu) carried him to hospital. He was examined by police on spot when police arrived at the place of occurrence at about 8 a.m.
25. PW.23 was the cousin of deceased who in his evidence stated that Sunil threw a bomb aiming at Kuilu and after receiving bomb injury Kuilu died on spot instantly and after watching such incident he lost his sense. He further stated that he deposed first time before this Court. Police did not interrogate him.
26. P.W.24 was the cousin of deceased.
27. P.W.25 was the Doctor who treated the injured victim. In his deposition he stated that on 15th July, 1999 one Lalu Kumar was admitted at Surgical Department with a history of assault along with head injury and multiple injuries. He stated that on examination as per report patient was conscious. On 16th July 1999 P.W.25 examined the patient because patient was admitted at night on 15th July, 1999. He further stated that as per patient party the patient received bomb injuries on his person.
28. P.W.26 was the Investigating Officer of the case. He deposed that on 14.071999 He was posted as Officer in charge Joypur (Purulia) and on that date at about 8.15 hours he scribed a written complaint as per instruction of Rohin Kumar and on the basis of above complaint he started Joypur P.S. Case No.37/99 under Sections 302/338/34 of the Indian Penal Code against six accused persons. Then he started investigation and arrived at the place of occurrence. He saw the dead body of Kuilu Kumar in pool of blood with grievous injury and held inquest over the dead body and prepared the inquest report.
He further stated that during investigation he seized blood stained earth from the place of occurrence, some remains of bomb articles and one bomb from place of occurrence. He also seized wearing apparels of the deceased namely white coloured genji stained with blood, one lungi navy blue colour, one undergarment and one white coloured full shirt, one gamchha stained with blood, some brick pieces under proper seizure list (Exbt.10).
He further stated that he prepared sketch map with index of the place of occurrence (Exbt.11). He also arrested all accused persons. He recorded the statements of Rohin Kumar and Gandhu Kumar under Section 164 of Cr.P.C. He collected post mortem report and injury report and Bed head tickets from hospital. He sent the seized articles to FSL for examination.
P.W.26 further stated that he examined Bhubaneswar Kumar who told him that he saw the accused persons were fleeing away. He examined Kandan Kumar who stated that he saw Sunil, Niranjan, Ajit, Bishu, Mukundu, Lakhiram to flee and he also saw the dead body of Kuilu Kumar with bomb injury. He also examined one Mukti Kumar who stated to him that he saw accused Sunil threw bomb aiming at Kuilu's back and Kuilu sustained injuries and died on spot. He also examined one Panulal Kumar who told that Sunil Kumar threw bomb aiming at Kuilu for which Kuilu was injured and died at spot and also stated that he saw all the accused persons being armed with lathi and chasing Lalu. He also stated that Rahin, Birbal and accused persons were also throwing brick bats aiming at them. In his cross examination he stated that seized articles were not produced before Court. He also stated in cross-examination that he failed to collect FSL report during his investigation period though he sent all articles on 14.02.2000 for FSL examination. He also stated that he examined Lalu Kumar on 29.07.1999 and Rohin Kumar on 21.07.1999.
29. In the above background Mr. Apurba Krishna Das, learned Counsel appearing for the appellants submitted that prosecution case is full of discrepancies and contradictions and also not corroborating with the FIR. He further submitted that FIR is a manufactured one, as the P.W.14 who scribed the FIR in his evidence stated that immediately after the incident he took his father to the hospital. Mr. Das contended therefore it was not possible for P.W.14 to be present at the same time both in police station as well as in hospital.
30. Mr. Das further contended that no FSL report was produced before the Court and no seized articles were produced before the Court. Two seizure list witnesses were declared hostile by the prosecution and 3rd seizure list witness Rahin was with his injured father on the date of occurrence. P.W.14 himself stated that after the occurrence he took his injured father directly to hospital. Therefore it was the contention of Mr. Das that it was not possible for the P.W.14 to sign on seizure list at police station at the same time when he was busy at hospital with his injured father.
31. Mr. Das further contended that there was no motive or enemity between the parties as it was evident from the FIR. He further contended that there were no chain of events to connect the convicts with the offences. The entire prosecution case was full of contradictions and discrepancies. Therefore conviction is bad and should be set aside by the Hon'ble Court.
32. On the other hand Mr. Pawan Kumar Gupta appearing for the State contended that it is evident from the testimonies of eye witnesses that accused Sunil threw a bomb at the back of Kuilu Kumar (deceased) as a result Kuilu died on spot after sustaining bomb injury on his back.
Mr. Gupta further contended that FIR was lodged on 14.07.1999 at about 7.30 a.m.. Post mortem was held at 12.30 hours on the same date. P.W.20 injured witness stated that being injured he was carried away by his son Rahin first to the police station, police station referred him to PHC and therefrom he was taken to Purulia Sadar Hospital and thereafter to Bankura Medical College and Hospital for better treatment. Therefore, it is proved that after the incident Rahin, the defacto complainant (P.W.14) at first with his injured father went to the police station and from the police station they were referred to PHC.
Mr. Gupta further contended that it is evident from the testimony of the eye witnesses namely P.W.10, P.W.12, P.W.14, P.W.22, P.W.23 and P.W.24 that they were witness to the incident that accused Sunil threw bomb at the back of Kuilu Kumar and Kuilu fell down and died on spot.
Mr. Gupta also contended that Lalu was taken by his son Rahin first to the police station thereafter to the hospital and the police being informed by Rahin went to the scene of occurrence.
Mr. Gupta further contended that Autopsy Surgeon who held post-mortem of the dead body stated in his evidence "There is exclusive lacerated wound scapula region 8" X 5" X deep to chest cavity. On dissection there was fracture of right scapula a lacerated wound in right lung. Fracture of 4th to 8th prostuiorly".
Mr. Gupta further urged that it is evident from the serial No.10 of the index of the rough sketch map of the place of occurrence where it was mentioned that "One bomb is lying".
33. On the facts and evidence as above there could be no dispute that the deceased Kuilu Kumar had died a homicidal death. Now the question is whether the prosecution has been able to connect the present appellants with the alleged crime.
34. Let us now examine/assess the evidence on record in the perspective of the guidelines of the Supreme Court of India.
35. On a close and critical reading of the evidence both oral as well as documentary with meticulous care we find that it is evident from the testimonies of all the eye witnesses namely P.W.10, P.W.12, P.W.14, P.W.22, P.W.23 and P.W.24 that accused Sunil threw bomb aiming at Kuilu's back and the Kuilu after receiving bomb injury fell down and died on spot.
36. We have also carefully gone through the evidence of P.W.21 the Autopsy Surgeon where he stated that "There is exclusive lacerated wound scapula region 8" X 5" X deep to chest cavity. On dissection there was fracture of right scapula a lacerated wound in right lung. Fracture of 4th to 8th prostuiorly".
37. We also find from the testimonies of witnesses that the accumulated water was flowing out from the land of Lalu towards the land of Biswanath (father of accused Sunil). Under such circumstances Biswasnath and his sons Sunil and Laxmiram Kumar blocked the point wherefrom water was flowing out from the land of Lalu. As a result whereof water accumulated in Lalu's land and Sunil threatened Lalu that if he allows the water to flow out again after creating a passage (Nala) then he would teach them a lesson. The next day i.e. on 14.07.1999 when Lalu Kumar, Kuilu and others went to their land for cultivation then accused Biswanath and his sons namely Sunil, Laxmiram and Niranjan obstructed them and started attacking Kuilu, Lalu and others by throwing stones and brick bats and Sunil hurled a bomb aiming at Kuilu's back and Kuilu after being injured fell down and died on spot. The entire scenario proved the motive of the accused persons behind the incident.
38. We also find that the testimonies of eye witnesses such as P.W.10, P.W.12, P.W.14, P.W.22, P.W.23 and P.W.24 corroborated with the post mortem report as well as the FIR. Therefore, we have no hesitation to hold that accused Sunil Kumar with the motive to inflict serious injuries on Kuilu with the intention of causing bodily injury which was likely to cause his death hurled bomb on Kuilu Kumar on 14.07.1999 as a result of whereof Kuilu died after receiving bomb injury. The evidence on record suggests that he acted in this manners after seeing his father's land was water logged because the victim and his family had released water from their land into his father's land.
39. We however, also find that the prosecution has not been able to fully prove the charge punishable under Section 302 of the Indian Penal Code against the accused persons. The charge punishable under Section 304 (Part-I) of the Indian Penal Code should be imposed against the accused namely Sunil Kumar for committing culpable homicide not amounting to murder.
40. Therefore we hold that the accused Sunil Kumar is guilty of the offence punishable under Section 304 (Part-I) of the Indian Penal Code. He is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of ` 10,000/- ; in default he is liable to suffer 6 months of Rigorous Imprisonment.
41. The appeal CRA No.667 of 2005 stands partly allowed. The appellant Sunil Kumar is convicted under Section 304 (Part-I) of the Indian Penal Code.
42. In respect of other convicts namely Niranjan Kumar, Ajit Kumar, Laxmiram Kumar and Mukunda Kumar, appellants in CRA No.658 of 2005 the Order of conviction and sentence passed by the learned Trial Judge is hereby affirmed.
43. The appeal thus stands partly allowed.
44. The office is directed to send the lower Court record at once.
(Samapti Chatterjee, J) (Nishita Mhatre, J)