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2000 DIGILAW 636 (CAL)

PARVATI ADHIKARI v. STATE OF WEST BENGAL

2000-12-14

RANJAN KUMAR MAZUMDER

body2000
R. K. MAZUMDER, J. ( 1 ) R. K. Mazumder, J-The instant Criminal revisional application under sections 401 and 482 of the Code of Criminal Procedure is at the instance of the Convict-Petitioner Smt. Parvati Adhikari and this is directed against the order of conviction and sentence dated 30. 4. 91 passed by the learned Additional Session Judge, second Court, Nadia in Criminal Appeal No. 25/90 affirming the order of conviction and sentence of rigorous imprisonment for six months and of payment of a fine of Rs. 1200/- in default to suffer further R. I for two months as passed by the learned SDJM, Ranaghat in G. R. Case No. 893 of 1985 (T. R. No. 299 of 1987) on 30. 8. 90. ( 2 ) THE case of the Convict-Petitioner Smt. Parvati Adhikari was in brief that on 22. 11. 85 the defacto-complainant informant Smt. Maya Ghosh lodged a written complaint against the petitioner and two others alleging inter alia that her son Tarak aged about 18 years, who was born dumb and lame, was taken to the Petitioner for his medical treatment and cure by the petitioner as the defacto-complainant-informant came to know from the people of the locality that the Petitioner was a 'kalisadhika' and had super-natural powers to cure any ailing person. In the written complaint it was also alleged by the complainant Smt. Maya Ghosh that on that date itself the petitioner being assisted by her brother Netai and sister Kalpana started the medical treatment of her son Tarak. For the purpose of the treatment a 'dhunuchi' was lit and incense powder was put in that burning 'dhunuchi', which emited dense smoke. It was also alleged in the complaint that thereafter the petitioner sat on the chest of Tarak for about four hours and this made Tarak senseless and he died soon thereafter. This incident gave rise to Ranaghat P. S. Case No 42 dated 23. 11. 85 under section 304a/34 of the IPC (GR Case No. 893 of 1985/t. R. No. 299 of 1987 ). After completion of investigation, the police submitted charge-sheet against the petitioner and two others under section 304a/34 of the IPC. This incident gave rise to Ranaghat P. S. Case No 42 dated 23. 11. 85 under section 304a/34 of the IPC (GR Case No. 893 of 1985/t. R. No. 299 of 1987 ). After completion of investigation, the police submitted charge-sheet against the petitioner and two others under section 304a/34 of the IPC. After a full-dressed trial the learned SDJM, Ranaghat held the Petitioner and two others to be guilty of the offence punishable under section 304a/34 IPC and sentenced the Petitioner to suffer R. I for six months and to pay a fine of Rs. 1200/- in default to suffer further R. I for two months for committing an offence under section 304a/34 of the IPC. Being aggrieved by the said order of conviction and sentence, the petitioner filed Criminal Appeal No. 25 of 1990 before the learned Additional Sessions Judge, Second Court, Nadia for redressal of her grievances. In appeal, learned Additional Sessions Judge found the petitioner's brother and sister to be not guilty but the said Court found the petitioner to be guilty in respect of the offence under section 304a/34 IPC and confirmed the order of conviction and sentence and directed that the Petitioner shall suffer R. I for six months and to pay a fine of Rs. 1200/- in default to suffer R. I. for further two months for committing the offence under section 304a/34 IPC as held by the learned trial Court. It is against this order of conviction and sentence that the Petitioner has moved this forum by way of filing the instant Criminal revisional application for redressal of her grievances. ( 3 ) I have had the opportunity of hearing learned counsels for both the parties in the matter at length. ( 4 ) THE only question requiring consideration in this Criminal revision was whether the order of conviction and sentence as confirmed by the learned First Appellate Court should be set aside as prayed for by the Petitioner or not. ( 5 ) AT the time of hearing learned counsel for the Petitioner Shri Dilip Dutta vehemently submitted that the instant order of conviction and sentence as confirmed by the learned First Appellate Court was totally wrong, without jurisdiction, irregular and illegal. In that connection it was submitted by him that the evidence of the prosecution witnesses were totally untrustworthy and no reliance could be placed on the same. In that connection it was submitted by him that the evidence of the prosecution witnesses were totally untrustworthy and no reliance could be placed on the same. His further submission was that the dead body of the victim was not identified in this case before the doctor and in the absence of identity of the deceased the prosecution case suffered a major set back and hence the benefit of the same should go in favour of his client. It was again submitted by him that on the alleged date of occurrence the victim was brought before the Petitioner in a critical stage and the blame of death of the victim was put on the shoulder of the Petitioner. It was again submitted by him that as the victim was brought to his client on the date of occurrence in a very sick condition, hence the petitioner refused to do anything on that date, but on the repeated requests of the complainant, his client started the medical course but unfortunately the patient died. Learned counsel then raised the question of 'mens Rea' and submitted that the whole intention of his client was to cure the patient and not to kill him. He, therefore, urged upon this Court for setting aside the instant order of conviction and sentence passed against his client by the two learned Courts below. ( 6 ) ON the other hand, Shri Kazi Safiulla, learned P. P. submitted that there was plethora of trustworthy evidence in this case of eye witnesses before whom the occurrence took place in broad day light and hence the same could not be discarded. He further submitted that both the learned trial Court and the learned First Appellate Court found the petitioner to be guilty of the offence punishable under section 304a/34 IPC and this concurrent finding of fact by the two learned Courts below could not be interfered with by this Court in revision when there was no irregularity, perversity and illegality in the matter. In the facts and circumstances of the case, learned P. P. prayed for dismissal of the instant criminal revisional application. In the facts and circumstances of the case, learned P. P. prayed for dismissal of the instant criminal revisional application. ( 7 ) IT appears from the evidence of the mother of the deceased boy (P. W. 3 Smt. Maya Ghosh) that on the date of occurrence at about 1 P. M she took her ailing son Tarak to the house of the Petitioner and she was told that her son could be cured by means of super-natural powers. It is also in her evidence that on the date of occurrence, the petitioner sat on the chest of the victim and started her magical operation. It is also in her evidence that on that date at about 5 P. M. when the Petitioner came down from the chest of the victim, the said witness at once rushed towards her son and found him dead. According to P. W. 3, her relative Dipak Ghosh also accompanied her to the house of the Petitioner on the date of occurrence. ( 8 ) ACCORDING to prosecution, PW 4 Dipak Ghosh was also an important eye witness to the occurrence. It appears from the evidence of PW 4 that on the date of occurrence at about 1 P. M. this witness accompanied the complainant (P. W. 3) to the house of the Petitioner and at that place the petitioner sat on the chest of the victim and she continued to do so from 1 P. M. till about 4 P. M. and that when the Petitioner got down from the chest of the victim, she declared that the victim had been cured. But according to PW 4 the victim died 10 minutes thereafter. ( 9 ) PW 6 Nila Sarkar hailed from the locality where the incident took place and she was again an eye witness. According to this witness, a dumb boy was brought to the house of the petitioner on the date of occurrence as the petitioner claimed that by her super-natural powers she could make a dumb speak. Hence many people of the locality also visited the house of the petitioner on the date of occurrence to see how the petitioner could cure that boy. PW 6 also visited that place on the date of occurrence at about 4/5 P. M and found that the petitioner took her seat on the chest of the victim, but after sometime the victim died. PW 6 also visited that place on the date of occurrence at about 4/5 P. M and found that the petitioner took her seat on the chest of the victim, but after sometime the victim died. ( 10 ) AGAIN it appears that on 23. 11. 85 PW 1 Dr. Swarup Kundu, who was attached to Ranaghat Sub-Divisional Hospital as a Medical Officer, held post mortem examination on the dead body of victim Tarak and found that the brain, larynx. Trachea, lungs and pleura of the deceased were all congested and in the opinion of the doctor the death of Tarak was due to asphyxia resulting from external compression over the chest, ante mortem and homicidal in nature. ( 11 ) IT transpires that the learned trial Court and also the learned First Appellate Court reposed full faith on the aforesaid evidence of the prosecution witnesses and upon a consideration of the facts and circumstances of the case and having due regard to the other materials on record both the learned Courts below came to the conclusion that the rash and negligent act of the petitioner was the direct cause of the death of the victim. In other words, it was the specific finding of both the learned Courts below that the rash and negligent act of the petitioner caused the death of the unfortunate boy Tarak on the date of occurrence. How can this concurrent finding of fact by both the learned Courts below be interfered with by the High Court in Criminal revision, when there was no perversity, irregularity or illegality in the said concurrent findings of fact by both the learned Courts below? ( 12 ) BE that as it may, a question as to identity of the victim was raised by the learned counsel for the Petitioner at the time of the instant hearing. I find that the learned First Appellate Court has dealt with the matter at length in the impugned Judgment and I find no wrong in such finding. ( 13 ) IT has been held by the Hon'ble Supreme Court in the case State of Kerala v. Puttumana Namboodiri as reported in 1999 Cri LJ 1443 that the jurisdiction of the High Court in Criminal revision was one of supervisory one for correcting miscarriage of justice. ( 13 ) IT has been held by the Hon'ble Supreme Court in the case State of Kerala v. Puttumana Namboodiri as reported in 1999 Cri LJ 1443 that the jurisdiction of the High Court in Criminal revision was one of supervisory one for correcting miscarriage of justice. But such revisional power could not be equated with the power of the Appellate Court nor could it be treated even as a Second Appellate jurisdiction. It was further held by the apex Court in that case that ordinarily it would not be appropriate for the High Court to appreciate the evidence of a case over again and come to its own conclusion on the incident when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless there was any glaring feature which would otherwise tantamount to gross miscarriage of justice. But such is not the case here. It is not a case of glaring injustice or miscarriage of justice. ( 14 ) IN the instant case, the evidence of prosecution witnesses and other materials on record indicated very clearly that the Petitioner sat tight on the chest of the victim for long about 4 hours and that the death of the 18 year old youth was the direct result of such rash and negligent act of the petitioner as held by the learned trial Court and confirmed by the learned First Appellate Court. In other words, as per decisions of both the learned Courts below there was direct nexus between the death of the boy and the rash and negligent act of the Petitioner. Thus it was a case of blame-worthy rashness, negligence and inadvertence and that the Petitioner's gross negligence and rashness caused the inopportune death of the victim and I find no wrong, no irregularity, no impropriety and no illegality in the Judgments and Orders of both the learned Courts below. ( 15 ) TO sum up, it appears that the occurrence took place in a hamlet under P. S. Ranaghat, District Nadia. The complainant being the mother of the 18 year old dumb and lame son, was a rustic and illiterate lady. She had no education to her credit. She believed in superstition and strongly felt that her ailing son could be cured by the Petitioner through the latter's super-natural powers as assured by the Petitioner. The complainant being the mother of the 18 year old dumb and lame son, was a rustic and illiterate lady. She had no education to her credit. She believed in superstition and strongly felt that her ailing son could be cured by the Petitioner through the latter's super-natural powers as assured by the Petitioner. A ray of hope in her cloudy horizon brought her to the village of occurrence, where the Petitioner, known as 'kali-Sadhika' lived and practised her business of treating patients by super-natural powers in lieu of money. But the unfortunate village lady could not still believe before arrival at the scene of occurrence that she would have to sacrifice her ailing son at the altar of falsehood wherefrom her son would never be able to come back to his sweet-home, where he got love, affection and care from his parents and relations during the short span of life for 18 years. The occurrence took place in broad day light in the presence of the complainant mother, her other relations and local people. These are all many important aspects of the case which, when considered in its right perspective, in the light of all materials on record, pointed out to one thing and one thing only that there was culpable negligence and rashness on the part of the Petitioner within the meaning of section 304a IPC. ( 16 ) IN the facts and circumstances of the case, I am, therefore, constrained to dismiss the instant criminal revisional application and the same is hereby dismissed. Order of conviction and sentence passed by both the Courts below against the petitioner is up held. Bail bond furnished by the Petitioner before the learned Chief Judicial Magistrate, Nadia shall stand cancelled. The Petitioner is directed to surrender before the learned. SDJM, Ranaghat, Nadia within two weeks from this day positively and upon such surrender, the learned Court below shall take her in custody and send her to prison forthwith so as to enable her to serve out the sentence passed against her. In the event of Petitioner's failure to surrender within the time limit as directed above, learned SDJM, Ranaghat, Nadia will issue warrant of arrest against the Petitioner and exhaust all necessary processes for apprehension of the said Petitioner and after such apprehension shall commit her to prison forthwith to serve out the sentence passed against her. In the event of Petitioner's failure to surrender within the time limit as directed above, learned SDJM, Ranaghat, Nadia will issue warrant of arrest against the Petitioner and exhaust all necessary processes for apprehension of the said Petitioner and after such apprehension shall commit her to prison forthwith to serve out the sentence passed against her. ( 17 ) LET a copy of this order be sent immediately to learned SDJM, Ranaghat, Nadia for necessary action in this regard. Let a copy of this order be also sent to the learned CJM, Krishnanagar, Nadia, for necessary action. Let the lower Court records be sent down to the learned trial Court below immediately. The order of Stay passed by this Court is hereby vacated. The Criminal Revisional application is this disposed of, If urgent Certified xerox copy is applied for, office is directed to issue the same as early as possible. Petition dismissed.