Calcutta High Court (Appellete Side)
Sukumar Saha vs State Of West Bengal on 21 December, 2009
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Debiprasad Sengupta
And
The Hon'ble Justice Prabhat Kumar Dey
C.R.A. No. 394 of 2001
SUKUMAR SAHA
Versus
STATE OF WEST BENGAL
For the Appellant : Mr. Y. J. Dastoor,
Ms. Devipriya Mitra,
Ms. Mayukhi Mitra,
For the State : Mr. R. R. Biswas,
Mr. Puspal Satpathi,
Heard on : 4.12.2009, 8.12.2009 and 9.12.2009
Judgement on : 21st December, 2009
DEBIPRASAD SENGUPTA, J. :
This appeal is directed against the judgment and order of conviction and sentence dated 9.7.1999 and 12.07.1999 respectively passed by the learned Additional Sessions Judge, Third Court, Barasat, North 24 Parganas in Sessions Trial No. 2(8) 97 (Sessions Case No. 7(8) 94) thereby convicting the accused appellant under Section 302/309 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life with a fine of Rs.2,000/-, in default to suffer S. I. for a period of six months for the offence under Section 302 of the Indian Penal Code. No separate sentence was, however, passed under Section 309 of the Indian Penal Code.
The prosecution case, in short, is that on the basis of a complaint lodged by one Uma Sashi Chakraborty (P. W. 1) a case was registered with Basirhat Police Station being Basirhat P. S. Case No. 351 Dated 18.12.1990 under Section 302 / 309 of the Indian Penal Code. In the First Information Report it was alleged that the accused appellant Sukumar Saha had a love affair with the deceased Purnima Chakraborty. The parents of Purnima could not accept such relationship as the accused was yet to establish himself in his life. The accused appellant used to visit the house of victim Purnima secretly in the dead hours of night. As the parents of Purnima did not like this relationship, they asked Purnima not to keep any relation with the accused appellant, Sukumar and accordingly Purnima asked Sukumar not to visit their house. It was alleged that on 17 / 18.12.90 at about 1.30 Hrs. the accused Sukumar came to the house of Purnima, entered into her room and asked Purnima to leave the house with him, which was refused by the victim, Purnima. On such refusal there was hot exchange of words between the accused appellant and the deceased and Purnima was threatened by the accused appellant that if she refused to leave her house with the appellant, she would be finished. It was the case of the prosecution that the elder sister of Purnima, namely, Namita was a blind girl and she used to sleep in the same room with Purnima. Namita (P. W. 6) woke up from sleep after hearing the hot altercation between the accused appellant and the victim Purnima and she requested the appellant not to behave in that manner. Namita started shouting for her mother, who came to the first floor and tried to intervene. The mother of Purnima was also threatened by the accused appellant and she also started shouting from the varandah for his neighbours. At that time, accused appellant pulled Purnima towards the window and started stabbing her repeatedly on different parts of her body, as a result of which Purnima fell down on the floor. After that the accused appellant in order to commit suicide gave blows by that knife in his abdomen. The entire incident took place in front of the mother and sister of Purnima. On hearing the shouts of mother, the neighbouring people rushed to the place of occurrence and found Purnima lying dead with severe bleeding injuries and the accused was also found lying by the side of Purnima with bleeding injuries. The weapon of assault i.e. the dagger was found lying by their side on the floor.
To prove its case, the prosecution examined as many as 21 witnesses including the Investigating Officer and the Medical Officers and none was examined on behalf of the defence. Defence of the accused was a plea of innocence and of false implication.
P.W. 1, Uma Sashi Chakraborty was the informant in the present case. She stated in her evidence that on the date of incident at about 12.00 / 12.30 in the night her two daughters, namely, Purnima and Namita went to the room on the first floor for going to bed while she along with her husband remained in the ground floor room. On hearing the voice of Sukumar she went upstairs and reaching there, she found Sukumar and Purnima in the room and Sukumar had a knife in his hand. On seeing her Sukumar told her that if she raised any alarm she would be killed by him and as such she came out of the room and from the adjacent varandah of the first floor started shouting and on hearing her shouts the neighbouring people rushed to the house. By that time Sukumar gave several blows with his knife on the different parts of the body of Purnima and Purnima was bleeding profusely. She fell down and thereafter Sukumar gave knife blows in his own abdomen and tried to commit suicide. After the said incident Khagen (P.W.3) and Swapan (P.W.8) came to that room and the incident was informed to the police. After arrival of the police FIR was drawn up and she put her signature in the complaint. She further deposed that her daughter Purnima, the victim gave money at different points of time to accused Sukumar to get him established as his condition was very poor. In her cross-examination she stated that Sukumar used to pay visit to their house for about 5/6 years and prior to the incident Purnima also used to visit the house of Sukumar occasionally. By such reciprocal visits, a love affair grew up in between Sukumar and Purnima.
P.W. 2, Molina Mullick was a resident of adjacent house. She stated in her evidence that on hearing the shout she rushed to the place and found many other persons assembled there. They went to the first floor of the house and heard from Namita (P.W. 6) that when Sukumar asked Purnima to accompany him and to leave the house, Purnima refused such proposal and at that time, Sukumar inflicted injuries on the different parts of the body of Purnima with a sharp weapon in his hand. She further deposed that after such assault Sukumar also inflicted injuries on his person with the same weapon.
P.W. 3, Khagen Das was also a resident of the adjacent house and he deposed that at about 1.00/1.30 A.M. on 18.12.1990 when he was sleeping at home, he heard the sound of crying from the house of Krishnadas Chakraborty. On hearing such shout he along with the members of his family rushed to the place of occurrence in the first floor of the said house and found two bodies were lying in pool of blood, one was the body of Purnima and the other was of Sukumar Saha. He also found the mother of Purnima and her elder sister, namely, Namita in that room and they were also crying.
P.W. 4, Ratan Saha was also a post occurrence witness. After hearing the shout he also rushed to the place of occurrence and found Purnima lying with bleeding injuries and he also found cut injury in the abdomen of Sukumar Saha (the appellant). Police came to the place of occurrence and seized bloodstained knife, two bloodstained chaddars and a pair of bloodstained sandal under seizure list and this witness put his signature in the seizure list.
P.W. 5, Nilima Mukherjee was the married sister of Purnima. She deposed that at about 2.00 / 2.30 A.M. P.W. 3 Khagen Das went to their house and informed them about the incident. She along with her husband rushed to the place of occurrence and found both Purnima and Sukumar lying with serious bleeding injuries on the floor.
P.W. 6, Namita Chakraborty was the blind sister of Purnima and she was with Purnima when the incident took place. She stated in her evidence that she was in the bedroom with Purnima on the first floor of the house and at about 1.00 in the night accused Sukumar went to their room and she heard that there was a conversation between Sukumar and Purnima. She heard the loud voice of Purnima, who was telling Sukumar as to why he came to their house and asking him not to visit their house again. She also deposed that Sukumar further stated that he would not leave the house alone and he asked Purnima to accompany him. She stated that though she was blind, she knew the voice of Sukumar and as such she recognized the said voice of Sukumar following the conversation. She called her mother, who was in the ground floor and her mother came upstairs and asked them not to do such things. At that time, the accused Sukumar struck Purnima with a knife on different parts of her body and Purnima fell down on the floor and she also heard the said sound and she heard the sound of stabbing.
P.W. 7, Narayan Mukherjee was the husband of P.W. 5. He also corroborated the evidence of P.W. 5 and other post occurrence witnesses.
P. W. 8, Swapan Das was a resident of that locality. He also corroborated the other post occurrence witnesses, namely, P.Ws. 2, 3, 4, 5 and 7 and said that after reaching the place of occurrence he found Purnima and Sukumar were lying with serious bleeding injuries on their persons.
P.Ws. 9 to 14 are all post occurrence witnesses and all of them stated that after hearing the shout from the house of Krishnadas Chakraborty (father of the victim Purnima), they rushed to the place of occurrence and found that Purnima and Sukumar both were lying on the floor with serious bleeding injuries on their persons. They also ascertained that Sukumar inflicted injuries on the various parts of the body of Purnima with a knife and thereafter he himself inflicted injuries in his own abdomen.
P.W. 16 was the Autopsy Surgeon, who held post mortem examination over the deadbody of Purnima. On examination he found the following injuries :
"1. The patient was healthy, nutrition good, rigormotis present.
2. No legature mark on the neck.
3. Irregular shape average 2" x 2" size deep wound over abdomen in mid line nu just below the umbilicus. Intestines were protruding through the wound.
4. 1" x ½" x ¼" superficial injury over right side of the abdomen along right anterior superior illume spine.
5. 2" x ½" penetrating wound in right flank at the level of umbilicus with protruding omentum and intestine.
6. Two cut injuries one 3" x ½" x ½" and the other one 2" x ½" x 1", over right side along posterior interior ilium spine.
7. Two cut injuries one - 2" x ½" x 1" and the other one - 2" x ¼" x ½" along left ili bone posterior side.
8. 2" x 1" x 1" sharp cut injury along lateral border along the middle of right arm.
9. 1" x ½" muscle deep cut injury along lateral aspect of right elbow.
10. 1" x ½" x 1" superficial cut injury over lateral border of right elbow parallel to injury no. 7.
11. 1 ½" x ½" superficial cut injury over dorsal of right wrist.
12. 1" x ½" superficial cut injury over lateral boarder of left elbow.
13. 1" x ½" superficial cut injury over dorsal of left hand, there was no fracture, no dislocation of any joint.
14. Heart was pale almost empty.
15. Peritoneal cavity was full of blood.
16. Small intestine - cut wound in the portion of protruding part from the abdominal wound sizes - (2" x 1").
17. Pelvic Colon - cut wound size (3" x 2").
18. Cut wound size (2" x 1" x ½") over lateral aspect of right kidney. "
He further deposed that injuries found in the hands of the deceased might be caused during resistance given by her to save herself from the assailant.
P.W. 18 was the Investigating Officer of the case and he submitted charge sheet on completion of investigation.
P.W. 19 was the Senior Scientific Officer of F.S.L. He stated in his evidence that if such knife is used in suitable condition, it might cause fatal on the person of a human body. In cross- examination he stated that he was not asked to make chemical examination of the knife to ascertain whether the blade of the knife contained any blood mark or not.
P.W. 20 was Dr. Sanjay Das and he was posted as Medical Officer of Basirhat Sub- Divisional Hospital. He examined the appellant Sukumar as indoor patient from the Emergency Department and he found that Sukumar had cut injury in his abdomen with intestine coil extruded out from the abdomen. He conducted surgical operation on Sukumar and found the following injuries :
" 1. Intesteneral coils found outside the cavity from the wound over the left side of umbilicus. Characteristic of the wound. L-shapped sharp cut injuries average size 2" x ¾" situated on the left side of the abdomen average 2" away from the umbilicus at the label of upper surface of umbilicus, approx. 2/2 ft. of Ileum protruding out of the wound. Another wound situated over the protruding Ileum and also injury over the mesentry. The localise portion of guard found to be divitilized.
2. 1" x ½" of the oblique sharp cut injuries with the label of umbilicus and 3" away from the umbilicus. Omentum from protruding out of the wound. Wound extended into the abdominal cavity.
3. 1" x ½" oblique sharp cut injuries just below and right of umbilicus. Wound extended into the abdominal cavity.
4. ½" x ¼" sharp cut injuries from right side of the abdomen about ½" below the second wound. Linear abrasive wound multiple over right and left side of the abdomen 6" average."
P.W. 21, Dr. Nikhilesh Ghosh, was the Medical Officer at Basirhat Sub-Divisional Hospital and he stated that Sukumar was brought to the hospital by police personnel of Basirhat Police Station. He examined the said patient and found one stabbing injury in his abdomen. He further deposed that the patient stated his name and address and further stated before him that the injuries were self-inflicted. The statement of the injured, Sukumar was recorded by P.W. 21 and was marked as Exhibit -14. He denied the suggestion that the contents of Exhibit - 14 in respect of the statement of the patient himself is not actually the statement made by the patient concerned.
Mr. Dastoor, learned Advocate appearing for the appellant submitted that the father of the victim, Krishnadas Chakraborty, although he was present in the house on the date of incident, was not cited as a witness in the present case. Non-examination of such a vital witness, according to Mr. Dastoor, casts a serious doubt on the prosecution case. But, in our considered view, such argument does not have any merit inasmuch as there are other prosecution witnesses, whose evidence was sufficient to prove the guilt of the accused. Prosecution examined P.W. 1, mother of the victim, P.Ws. 5 and 6, two sisters of the victim as also other neighbouring people, who came to the place of occurrence immediately after the incident and found that the victim Purnima and the appellant Sukumar were lying on the floor with serious bleeding injuries and the weapon of assault was also found lying on the floor by their side. We do not find any reason to disbelieve the evidence of these witnesses. When the evidence of the prosecution witnesses already examined is sufficient to prove the guilt of the accused, non-examination of a single witness does not affect in any way the prosecution case.
Next argument advanced by the learned Advocate of the appellant was that immediately after the incident there was a gathering of neighbouring people, but no attempt was made by them to take the victim and injured Sukumar to the hospital. The incident took place at about 1.30 in the morning and they were taken to the hospital after the police arrived at about 6.30. This delay in taking the injured to the hospital also casts a serious doubt on the prosecution case, but in our considered view, this argument does not have any merit and we are of the view that simply because of this reason the entire prosecution case cannot be disbelieved.
Mr. Dastoor next pointed out that in the present case incident took place at about 1.30 in the night of 17/18.12.1990 and the case was registered at 06.30 in the morning of 18.12.1990. Such FIR was despatched on the same day at 8.00 A.M., but the same was received by the court on 22.12.1990. It is apparent that although the FIR was despatched on the same day in the morning, the same was received by the court on 22.12.1990. This delay in sending the FIR to the court remained unexplained by the prosecution. It is, therefore, clear that the FIR itself was a belated document and there was sufficient time for the prosecution party to deliberate and prepare a false case against the accused appellant. From the records we find that there was a delay in sending the FIR to the court, but in our considered view, only because of such delay, the entire prosecution case cannot be disbelieved when there are so many witnesses to prove the guilt of the accused. The mere fact that the copy of FIR was received by the Magistrate after a delay of 3 days, cannot create any doubt about the prompt lodging of FIR. In cases where there is some delay in despatching the FIR to court, that alone can in no case be taken to be a ground for throwing out a prosecution case if otherwise the same is proved by unimpeachable evidence. In the facts and circumstances of the case, we find that there was no delay in lodging the FIR. Where the FIR was recorded without delay and investigation started on the basis of such FIR, the delay in sending the FIR to the Magistrate cannot by itself justify the conclusion that the investigation was tainted.
Mr. Dastoor, learned Advocate next argued, referring to the evidence of two doctors, namely, P.Ws. 20 and 21 that the injuries received by the accused appellant were serious in nature and it is in the evidence of the doctor that the appellant Sukumar, when he was brought to the hospital, was in a collapsing condition. It was argued by Mr. Dastoor that the accused appellant, who received such serious bleeding injuries and was in a collapsing condition, was not in a position to make any statement before P.W. 21 to the effect that such injuries were self- inflicted. But this argument also does not appeal to us. We find that injured Sukumar was first examined by P.W. 21 and he found serious bleeding injuries on his person. Considering the serious condition of the patient he took a decision to refer him to the Surgical Ward as he was of the opinion that immediate surgery was necessary. He examined the injured Sukumar and recorded his statement in the bed head ticket as it was stated by the injured that such injuries were self-inflicted. We do not find any reason to disbelieve the evidence of P.W. 21, who being a doctor did not have any enmity with the accused persons or his family members. This witness was also cross-examined at length but nothing infirm could be elicited from his evidence. P.W. 20 was the doctor, who conducted operation on Sukumar and he found four injuries on the body of Sukumar as we have already discussed above. The evidence of these two doctors is quite acceptable and there is no reason to disbelieve them.
Mr. Dastoor next pointed out some discrepancies as regards the time of arrival of the police party and arrival of the neighbouring witnesses, but in our considered view, such minor discrepancies are quite natural in such a case, where the witnesses deposed in court about eight years after the incident. Only because of such minor discrepancies the prosecution case, in our considered view, can never be disbelieved.
Referring to the forwarding report of the police, it was submitted by Mr. Dastoor that the accused Sukumar was taken into custody after he was discharged from the hospital, but it was not mentioned in the forwarding report prepared by the police that the accused appellant made any statement before P.W. 1 to the effect that the injuries on his body were self-inflicted. This may be an omission on the part of the Investigating Officer, but simply because of this reason the entire prosecution case cannot be discarded.
Mr. Dastoor next pointed out with reference to the post mortem report that the deadbody was sent for post mortem examination at 8.15 Hrs., but from the inquest report it becomes clear that the inquest was held at 9.30 Hrs. Such discrepancy in time, according to Mr. Dastoor, also casts a serious doubt on the prosecution case, but we are unable to accept such contention inasmuch as we find that inquest was held not at 9.30 A.M., but at 7.30 in the morning and deadbody was sent for post mortem examination on the same day i.e. 18.12.1990 at 8.15 in the morning. So, there is absolutely no discrepancy as it was indicated by Mr. Dastoor.
The learned Advocate of the appellant relies upon a judgment of the Hon'ble Apex Court reported in (1982) 2 SCC 396 (Mayur Panabhai Shah Vs State of Gujarat). It was held by the Hon'ble Apex Court in the said judgment that where a doctor has deposed in court, his evidence has got to be appreciated like the evidence of any other witness and there is no irrebuttable presumption that a doctor is always an witness of truth.
The next judgment, relied upon by the learned Advocate of the appellant, is reported in AIR 1976 SC 1924 (Subhash & Another Vs State of UP) wherein the Hon'ble Apex Court held that on a reference for confirmation of the sentence of death, the High Court is under an obligation not only to see whether the order passed by the Sessions Court is correct, but it is under an obligation to examine the entire evidence for itself. The order of conviction and sentence was set aside by the Hon'ble Apex Court on the ground that the medical evidence falsified the eyewitnesses' account. In our considered view, this judgment is not at all applicable in the present case as the facts and circumstances of the said case are totally different from the present one.
The next judgment, relied upon by the learned Advocate of the appellant, is reported in AIR 1976 SC 2263 (Lakshmi Singh & Others Vs State of Bihar). In the said judgment, it was held that omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version, which competes in probability with that of the prosecution. This judgment is also not applicable in the present case as we find from the evidence on record that most of the witnesses, examined by the prosecution in the present case including two doctors, were not at all interested witnesses. P.Ws. 1, 5 and 6, who were the mother and two sisters of the deceased, might be the relations of the deceased, but simply because of this reason their entire evidence cannot be disbelieved. The other post occurrence witnesses were all neighbouring people living in the adjacent houses and they did not have any enmity with the accused appellant. As such, there could not be any reason as to why these witnesses would implicate the accused appellant falsely. There was even no suggestion of enmity between the parties in the cross-examination of those witnesses. In such circumstances, the decision referred to above is not applicable in the present case.
The next judgment, relied upon by the learned Advocate of the appellant, is reported in AIR 1975 SC 1962 (Balaka Singh & Others Vs State of Punjab). This judgment is also not applicable in the present case. From a reading of the said judgment we find that in the said case FIR was found to have been written after inquest report was prepared by the police and it was held that such an FIR lost its authenticity. But in the present case we find that FIR was lodged at 6.30 A.M. on 18.12.1990 and inquest was held on the same day at 7.30 A.M. The learned Advocate of the State submitted that in the present case P.W. 1, the mother of the deceased, was an eyewitness to the incident of assault. There were as many as 12 post occurrence witnesses, who were the neighbouring people of the locality, who came immediately after the incident and found two bodies were lying on the floor with serious bleeding injuries and the weapon of assault was found lying by their side. It is also in their evidence that those witnesses ascertained that accused Sukumar first inflicted injuries on the body of Purnima with a knife and when Purnima fell down on the floor the accused inflicted injuries on his own abdomen with the same knife.
It is pointed out by the learned Advocate of the State that medical evidence also corroborates the ocular version of the witnesses. There is a statement of the injured accused recorded by P.W. 21 where the accused stated that injuries on his person were self-inflicted. This witness did not have any enmity with the accused and there was no reason for the doctor (P.W.
21) to implicate the accused appellant falsely in the present case.
We have heard the learned Advocates of the respective parties. We have also perused the entire evidence on record as also the judgments relied upon by the learned Advocate of the appellant. After considering the totality of the evidence, we find sufficient merit in the submission made by the learned Advocate of the State.
From the evidence on record, it becomes clear that there was a love affair between the victim Purnima and accused Sukumar, which was not acceptable by the family members of Purnima and Sukumar was asked not to visit the house of Purnima. On the fateful night the accused Sukumar visited the house of Purnima and insisted upon her leaving the house with him. Purnima refused to go with Sukumar. Victim Purnima and her blind sister, Namita Chakraborty (P.W.6) used to sleep in the same room. On being attracted by the shout of P.W. 6, Namita Chakraborty, their mother came to their room and she found the accused Sukumar stabbing her daughter, Purnima on different parts of her body. After Purnima fell down on the floor, the accused Sukumar inflicted several injuries in his abdomen. P.W. 1, the mother of the deceased, was an eyewitness to the incident and she had given a vivid description of the offence and she has also corroborated her earlier statement made in the FIR. That apart, there is evidence of other 12 post occurrence witnesses, as we have already discussed above, who came to the place of occurrence immediately after the incident and saw the victim Purnima and accused Sukumar lying side by side on the floor with serious bleeding injuries on their persons. We have carefully gone through the evidence of these witnesses and we do not find any reason to disbelieve these witnesses. They were cross-examined at length, but nothing infirm could be elicited from their cross-examination. P.W. 21 was the doctor, who examined injured Sukumar first and considering his serious condition he referred the patient to the Surgical Ward as he was of the opinion that immediate surgery was required. He recorded the statement of Sukumar in the bed head ticket that injuries found on the body of the appellant Sukumar were self-inflicted as it was stated by the injured himself. The argument advanced by Mr. Dastoor, learned Advocate of the appellant that it was not possible for Sukumar, who received such serious bleeding injuries in his body, to make any statement before the doctor, is also not acceptable to us. The doctor, who recorded the statement of the accused appellant Sukumar did not have any enmity with the appellant and there was no reason for him to implicate the accused appellant falsely in the present case.
Considering the totality of the evidence, we are of the view that the prosecution was able to prove its case from reasonable doubt. In our considered view, the judgment and order of conviction and sentence passed by the learned Trial Judge do not suffer from any illegality and we do not find any reason to interfere with the same.
The judgment and order of conviction and sentence is, accordingly, affirmed. The present appeal is dismissed.
A copy of this judgement along with LCR may be sent down to the court below immediately.
Urgent Xerox certified copy of this judgment and order may be supplied to the learned Advocates of the respective parties, if the same is applied for.
(DEBIPRASAD SENGUPTA, J.) I agree, (PRABHAT KUMAR DEY, J.)