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2004 DIGILAW 255 (CAL)

KESHAB PRASAD SINGH v. STATE OF WEST BENGAL

2004-04-07

GORACHAND DE, SANKAR PRASAD MITRA

body2004
G. C. DE, J. ( 1 ) THIS appeal by the convict Keshab Prasad Singh is filed against the judgment and order of conviction dated 8-1-99 and sentence dated 11-1-99 passed by the learned Sessions Judge of the 6th Bench of the City Sessions Court at Calcutta in Session Case No. 17 of 1997 arising out of bowbazar P. S. Case No. 454 dt. 2-12-96. By the said judgment, the learned Sessions judge found the accused guilty under Section 302 of IPC and convicted him thereunder and sentenced him to suffer imprisonment for life. ( 2 ) THE prosecution's case in brief is that the convict Keshab Singh along with his wife sila Devi, minor son Rabi {p. W. 18) and daughter Sikha was residing in the Darwan's quarter on the roof of the fourth stroried building at 14, Princep Street, Calcutta. In the morning of 2-12-96, Rambahadur Singh (P. W. 3), brother of Sila Devi received an information through one Mustafa, a porter of princep Street and one Basista Narayan singh (P. W. 7) that at about 6. 30 a. m. Sila devi was lying in a pool of blood on her bed inside the Darwan's quarter of Keshab prasad Singh. On getting such information, rambahadur Singh rushed to the spot and noticed that his sister with several bleeding injuries on her person was lying dead and the husband of the victim with his son and daughter was missing. ( 3 ) THE matter was informed to the police and after arrival of the police, a written complaint was written and after signing it, rambahadur Singh sent it to the police officer on the basis of which a formal F. I. R. was drawn and the case was taken for investigation. ( 4 ) IN course of investigation, Keshab prasad Singh was arrested from his native village Sarai Kalyan, Barorlpur, District Sultanpur, U. P. It was ascertained that keshab Prasad Singh in the morning of 2-12-96 left for his native village with his minor son and daughter and on the following day he had to be removed to the hospital as he tried to commit suicide by taking poison (Baygon) In course of investigation, postmortem report of the dead body was collected and it was detected from the postmortem report that there were altogether 46 injuries. Further report was also collected which confirmed the presence of human-blood in few of the articles seized from the locale. After completion of investigation, the police submitted the charge-sheet against the accused Keshab Prasad Singh. The case was committed to the Court of Session and charge under Section 302 of I. P. C. was framed against the accused and as he pleaded not guilty to the charge, the prosecution examined as many as 21 witnesses. However, no defence witness was examined and the defence as can be ascertained from the trend cross-examination and answers given in course of examination under Section 313 of Cr. P. C. is simple ignorance as regards the death of Sila Devi. ( 5 ) THE trial Court after scanning the evidence on records came to a finding that the charge against the accused was proved and the accused was accordingly convicted and sentenced in the manner indicated hereinabove. ( 6 ) AT the very outset it is to be mentioned that in course of trial, the accused could not engage any lawyer for which the State Defence was given at the direction of the Court. A Jail Appeal was filed by the accused challenging the conviction and sentence through the Superintendent of the Presidency Jail. Since nobody was representing the convict, the Division Bench of this Court on 22-2-99 passed an order directing the learned P. P. of this Court to engage an advocate for the petitioner and accordingly Mr. R. K. Ghosal was appointed from the State panel. Mr. Ghosal duly appeared before this Court on 1-3-99 and on different dates. However, on 5-4-2004, Mr. Subhasish Roy advocate entered appearance and submitted that he has been instructed by the appellant to appear in this appeal. Accordingly, an order was passed for production of Vakalatnama. Actually yesterday (6-4-2004) one vakalatnama on behalf of the convict executed and attested on 11 -9-2003 was filed showing Mr. Indranil Bose, advocate on record along with Mr. Subhasish Roy and mr. B. De, advocates. ( 7 ) SINCE nobody was appearing on behalf of the State respondent, learned P. P. appeared in person and confirmed engagement of Miss Minoti Gomes, advocate who was found to be present in court. Since the appellant has been represented by a lawyer of his choice, Mr. R. K. Ghoshal, advocate was released from conducting the case on behalf of the appellant. Since the appellant has been represented by a lawyer of his choice, Mr. R. K. Ghoshal, advocate was released from conducting the case on behalf of the appellant. ( 8 ) IN course of hearing of this appeal, mr. Royl learned Counsel appearing on behalf of the appellant made a forceful argument challenging the conviction under Section 302 of I. P. C. Mr. Roy scanning the evidence of the witnesses contended that the accused brought his wife to the Darwan's quarter at Calcutta for treatment and as she was found to be uncurable, a message was given to her brother Rambahadur Singh (P. W. 3) early in the morning of 2-12-96 and thereafter the accused went to his native place at U. P. with his minor son and daughter for their proper care. It is also clarified that seeing the moribund condition of his wife, Keshab Prasad Singh tried to end his life by taking poison. All these facts, if taken together would indicate that the accused had no Intention to kill his wife Sila Devi. It is also argued that no weapon of offence having not been recovered, it would not be possible to connect the accused with the alleged offence, specially when the evidence on record indicates the presence of several outsiders In the same premises during the night hours. So, Mr. Roy concluded that the possibility of infliction of injuries on the person of the victim Sila Devi by others cannot be ruled out and accordingly circumstantial evidence cannot indicate that the accused alone was responsible for the death of victim Sila Devi. ( 9 ) MISS Gomes, learned counsel appearing on behalf of the State on the other hand refuted the arguments of Mr. Roy by pointing out the conduct of the accused before as well as at the time of the alleged offence. Miss Gomes pointed out that the son of the victim (P. W. 18) categorically stated that in the night of 1-12-96, the victim Sila Devi was assaulted by the accused. It is pointed out that he saw the blood came out from the left side ear of his mother and also from other injuries. He further stated that at the , direction of the accused, food was purchased from outside and It was consumed by the accused, P. W. 18 and his minor sister siksha. It is pointed out that he saw the blood came out from the left side ear of his mother and also from other injuries. He further stated that at the , direction of the accused, food was purchased from outside and It was consumed by the accused, P. W. 18 and his minor sister siksha. P. W. 18 further stated that his mother was lying unconscious in that night and in the morning also she was found in that condition but Keshab Prasad Singh took p. W. 18 and his sister Siksha to his native village at U. P. ( 10 ) SCANNING the evidence of P. W. 18 and also the evidence of other witnesses viz. P. W. 4, P. W. 5, P. W. 6, P. W. 7. P. W. 9 and P. W. 10, Miss Gomes clarified that possibility of inflicting injuries on the person of the victim by any other person is to be ruled out. ( 11 ) MISS Gomes also pointed out that the nature of the injuries as detected by Autopsy surgeon are sufficient to indicate that all these injuries were caused by fist and blows. P. W. 3 also clarified that the accused was in the habit of assaulting his wife as she protested consumption of liquor by the accused. So, placing reliance on substantive evidence miss. Gomes concluded that the accused was in the habit of assaulting his wife and the death was caused to the wife by such assault. ( 12 ) IT is argued by the learned counsel for the State scanning the materials on record that an option is left open to this court to consider as to whether this case is to be construed as a case of culpable homicide or culpable homicide not amounting to murder to bring the offence punishable under Part II of Section 304 of I. P. C. ( 13 ) MR. Roy, in reply reiterated that the circumstantial evidence cannot bind the accused with any offence either homicide or suicide. Mr. Roy further pointed out that p. W. 18 saw the accused giving only one slap to his mother. So, the injuries found in the body of the victim cannot be construed to have been inflicted by slapping only. So, Mr. Roy prays for acquittal of the accused person from this case. Mr. Roy further pointed out that p. W. 18 saw the accused giving only one slap to his mother. So, the injuries found in the body of the victim cannot be construed to have been inflicted by slapping only. So, Mr. Roy prays for acquittal of the accused person from this case. ( 14 ) AFTER hearing the learned counsel of both sides and on perusal of the materials on records including the judgment of the trial Court, we find that the victim Sila Devi died as a result of 46 different injuries inflicted on her person caused by fist, blows and kick. The brother-in-law of the accused i. e. P. W. 3 stated how the accused used to assault his wife when protest was made against taking liquor by the accused. P. W. 18 corroborates the story of assault on the victim at the hand of the accused. True, it is that P. W. 18 did not describe how 46 injuries were inflicted on the person of his mother. But the description of keeping injured body of his mother in the whole night is sufficient to indicate that the injuries were inflicted in the night of 1-12-1996. The blood and blood-stains found in the wearing apparels and on other articles in that room indicate the presence of human blood. The nature of injuries are such that weapon of offence would not be necessary but fist, blows and kick were sufficient to cause such injuries. Be that as it may, the evidence on record proves that the accused assaulted his wife in the night of 1-12-96. ( 15 ) IT is also stated above that the accused did not take any step for the treatment of his injured wife, though she was lying unconscious after the incident for the whole night. The conduct of the accused viz. , leaving the premises with his two minor son and daughter in the morning of 2-12-96 without informing his brother-in-law rambahadur Singh (P. W. 3) is sufficient to indicate that he wanted to suppress the assault by his hand but subsequently taking poison by the accused at his native village and shifting to the local hospital for recovery are also sufficient to indicate that he took poison consciously for committing suicide. It is analysed in the examination under tion 313 of Cr. It is analysed in the examination under tion 313 of Cr. P. C. by the accused that as a false allegation of murder of his wife was given, he thought it fit to finish his life by taking poison. But surprisingly enough how he got the information of allegation of murder in his native place on 3-12-96 is not clarified. On the other hand, it indicates that the accused was guilty conscious about the injuries caused on the person of his wife by him due to serious assault after consumption of liquor. But in the morning while he was. out of the influence of liquor he thought it fit to take away his minor children to his native place for their better care and thereafter to end his own life. Hence before leaving the Darban's Quarter i. e. 14 Princep street, Calcutta, the accused was aware that his wife died as a result of the injuries inflicted by him on her person in the last night. ( 16 ) SO, the question is whether the death of Sila Devi can be construed to be a culpable homicide amounting to murder or not amounting to murder. ( 17 ) IT is already. discussed above that in the night of 1-12-96 the accused assaulted the victim as usual under the influence of liquor. It also appears from the evidence of rambahadur Singh (P. W. 3), brother of the victim Sila Devi that the accused was in the habit of assaulting his wife. So like all other days the accused assaulted the wife of course in aggravated form that caused several injuries as indicated in the postmortem report. The fact of purchasing food for the members of the family after assault in that night on 1 -12-96 is sufficient to indicate that the accused did not think that the assault would end the life of the wife Sila Devi. So, keeping her in usual lying condition the accused with his two children took meal. This. is also sufficient to Indicate that the accused had no intention to kill the wife. But in the morning when he found that the wife was dead he thought it fit to end his own life by taking poison after placing his minor son and daughter in a proper care at his village home. Actually the accused did so and consumed poison at his village home. But in the morning when he found that the wife was dead he thought it fit to end his own life by taking poison after placing his minor son and daughter in a proper care at his village home. Actually the accused did so and consumed poison at his village home. This conduct of the accused clarified his repentance over his own act that ended the life of his wife. All these aspects. If taken together, will prove that the accused never intended to kill his wife. ( 18 ) ACCORDINGLY, we do not think that the prosecution was able to prove the charge under Section 302 of I. P. C. against the acccused. Practically, these circumstances were also not taken care of by the trial Court. On the other hand, the evidence of regular quarrel between the husband and wife on the issue of taking wine by the husband and subsequent assault are sufficient to Indicate that the culpable homicide was not amounting to murder. ( 19 ) SINCE we have come to the conclusion that the offence comes within the purview of Section 304 of I. P. C. , it is required to be ascertained from the materials on record as to whether the offence would come under Part-I or Part-II of that section. Assault by fist, blow, slap and kick by the accused are sufficient to indicate that his main intention was to assault and If he had any intention to cause death, he could have used other weapons or means. The evidence on record, does not disclose such intention of causing death for which we rule out the possibility of convicting the accused under part-I of Section 304 I. P. C. On the other hand, after considering the evidence on record and the circumstances and the several injuries on the person of the victim we come to a conclusion that the accused was aware or had the knowledge that the injuries were likely to cause death, but without any Intention to cause death or to cause such injuries as was likely to cause death. Accordingly, we hold and conclude that the accused Keshab Prasad Singh is to be found guilty under Part-Ill of Section 304, I. P. C. ( 20 ) SINCE the charge under Section 302 of I. P. C. has already been framed against the accused, there is no necessity of framing further charge for lessor punishment. There is also no necessity to hear the accused on the question of sentence any further. So, in allowing the appeal in part, it is ordered that the accused Is found guilty under Section 304 (Part-II) of I. P. C. and he is convicted thereunder. After modifying the conviction and reducing the sentence passed under section 302, I. P. C. , the accused Keshab prasad Singh is sentenced to suffer rigorous Imprisonment for 7 years and also to pay a fine of Rs. 2,000/-, in default, to suffer further rigorous imprisonment for one year. Period of detention undergone during trial be set off against the substantive sentence under Section 428, Cr. P. C. ( 21 ) LET a copy of this Judgment be sent to the trial Court forthwith for Issuance of modified Jail Warrant after taking necessary steps as regards imposition of fine. ( 22 ) SANKAR PRASAD MITRA, J. : 1 agree. Order accordingly.