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2005 DIGILAW 465 (CAL)

RAJENDRA SHAW v. STATE OF WEST BENGAL

2005-07-25

ARUN KUMAR, DEBIPRASAD SENGUPTA

body2005
SENGUPTA, J. ( 1 ) THIS appeal is preferred against the judgment and order of conviction and sentence dated 22nd December, 2000 passed by the learned Additional Sessions Judge, 3rd Court at Alipore in Sessions trial No. 4 (3)/2000 (Sessions Case No. 5 (11) 99) thereby convicting the accused appellant under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of rs. 5,000/-, in default to suffer R. I. for a further period of one year. ( 2 ) THE prosecution case, in short, is that on 20. 4. 96 at about 10. 20 p. M. the defacto-complainant (P. W. 13) was taking his meal along with his father Ramgati Shaw, his uncle and Rajendra Shaw (appellant ). His father ramgati and accused Rajendra were sitting opposite to each other and were having their meal and at that time all of a sudden a quarrel started in between the father of the informant and accused Rajendra Shaw. In the midst of such quarrel accused Rajendra brought out one wooden rod and gave a blow on the head of the victim causing serious injury on his head. The victim fell down and became senseless. The accused filed away from the spot immediately after the incident. Victim Ramgati was taken to sishumangal Hospital, from where he was taken to S. S. K. M. Hospital and finally to National Medical College and Hospital, where he succumbed to his injuries on 23. 4. 94. ( 3 ) ON the basis of the complaint lodged by the son of the victim (P. W. 13) a case was registered with Tollygunge Police Station under Section 307 I. P. C. and on completion of investigation charge-sheet was submitted under Section 304 I. P. C. The learned trial Judge after considering the materials placed before him, framed charge under Section 302 of the Indian penal Code. ( 4 ) PROSECUTION examined as many as 20 witnesses to bring home the charge against the accused person and none was examined on behalf of the defence. The defence was a plea of innocence. ( 5 ) THE main witnesses in the present case are P. Ws. 1, 2, 5, 7, 13, 15 and 19, who are eyewitnesses to the occurrence. The defence was a plea of innocence. ( 5 ) THE main witnesses in the present case are P. Ws. 1, 2, 5, 7, 13, 15 and 19, who are eyewitnesses to the occurrence. P. W. 1, who is an eyewitness to the incident, stated in his evidence that 5/6 days prior to the date of incident of assault accused Rajendra Shaw abused the victim in filthy language, when para people assembled there and settled the matter. 5/6 days thereafter on a Saturday at about 10/10. 30 P. M. when he along with the victim and others were taking meal the accused again started abusing the victim. Victim also being excited abused the accused person. At that time accused with the help of a rod assaulted the victim on his head and fled away from the spot. Victim was taken to Sishumangal Hospital and from there to S. S. K. M. Hospital. Ultimately he was admitted in National medical College and Hospital where he succumbed to his injury. P. W. 2 stated in his evidence that on the date and time of incident while he was taking meal with others, accused Rajendra Shaw came there and picked up a quarrel and in the midst of such quarrel he assaulted victim Ramgati with a rod on his head causing serious injury. P. W. 5 stated in his evidence that during summer, they used to sleep on footpath in front of their premises. One week before the incident victim Ramgati slept on the footpath on a khatia. Others also slept on the footpath. At about 11/11. 30 P. M. , accused came to that place and when victim refused to obey his direction the accused overturned the khatia and there was a scuffling in between them. This witness along with others separated them and at that time accused threatened the victim by saying that he would murder him if he did not vacate the place for him. So far as the second part of the incident, i. e. , the incident of assault is concerned, this witness corroborated P. Ws. 1 and 2. P. W. 7 is also an eyewitness to the incident of assault. So far as the second part of the incident, i. e. , the incident of assault is concerned, this witness corroborated P. Ws. 1 and 2. P. W. 7 is also an eyewitness to the incident of assault. He also stated that at the time of taking meal at night, there was a quarrel between the accused and the victim and in the midst of such quarrel both the accused and the victim started abusing each other. In the midst of such quarrel accused brought out one wooden rod and assaulted the victim on his head. Victim was brought to hospital where he died. P. W. 13 is the defacto-complainant and he corroborated his statement made in the FIR. P. Ws. 15 and 19 are also eyewitnesses to the incident. P. W, 19 corroborated other eyewitnesses and stated that at the time of taking meal at 10/10. 30 P. M. there was a quarrel between the accused and the victim and in the midst of such quarrel the accused all of a sudden brought out one wooden rod and assaulted the victim on his head causing serious injury, victim was taken to hospital, where he succumbed to his injuries. ( 6 ) P. W. 11 is the Doctor in Emergency Department of National Medical college and Hospital before whom the patient party stated that the victim was assaulted by accused Rajendra Shaw following some altercation on 20. 4. 96 at 10. 20 P. M. This witness could not examine the wound of the patient. ( 7 ) P. W. 17 is the autopsy surgeon, who held postmortem over the, deadbody of victim Ramgati. On examination of the body, he found the following injuries :-1) One stitched up wound 1" more or less vertically placed over the vault of the scalp involving frontal region on left side being placed just to the left mid line and anterior and being placed 41/2" above eye brow. On removal of stitches it was seen to be lacerated in character with abraded contused skin margin and bone deep. 2) One stitched up wound 2"in length placed over the vault of the scalp involving fronto parietal region more or less over the mid line anterior and being 5" above front hasal angle. On removal of the stitches it was seen to be lacerated in character with contused abraded skin margin and bone deep. 2) One stitched up wound 2"in length placed over the vault of the scalp involving fronto parietal region more or less over the mid line anterior and being 5" above front hasal angle. On removal of the stitches it was seen to be lacerated in character with contused abraded skin margin and bone deep. 3) One defused bruise livid in colour 2" X 1" over left (illegible ). 4) Defused brainse livid red in colour 1" X 1" over left hypo thenaremminence. ( 8 ) THE only argument advanced by the learned Advocate of the appellant is that the appellant having struck a solitary blow on the head of the victim with a wooden stick in course of a quarrel between the accused and the victim and such incident having been occurred in a spur of moment and in the heat of passion upon a sudden quarrel, can be attributed with the knowledge that it would cause an injury which was likely to cause death and not with any intention to cause death of the victim. Accordingly, it is submitted by the learned Advocate of the appellant that the offence committed by the accused appellant amounts to culpable homicide not amounting to murder punishable under Section 304 Part-ll of the Indian penal Code. ( 9 ) SO, the only question which remains for consideration is whether on the materials-on-record it can be said that the appellant gave the blow on the head of the victim with intention of causing death of the victim so as to be convicted under Section 302 of the Indian Penal Code. ( 10 ) THE evidence on record of the eyewitnesses has already been discussed above. There is no doubt that there was a sudden quarrel between the accused and the victim and in the midst of such quarrel the accused assaulted the victim with a wooden stick on his head causing serious injury. It is also clear from the evidence on record that such quarrel started over the dispute regarding the place of sleeping on the footpath. Both the accused and the victim came from a very poorer section of the society. The appellant is a tanker driver and the deceased is a mason by occupation. It is no doubt unfortunate that the dispute, which started over occupying the place of sleeping on the footpath, ended with the death of the victim. Both the accused and the victim came from a very poorer section of the society. The appellant is a tanker driver and the deceased is a mason by occupation. It is no doubt unfortunate that the dispute, which started over occupying the place of sleeping on the footpath, ended with the death of the victim. The incident took place at about 10/10. 30 P. M. when the victim, the accused and some other witnesses were taking meal. A quarrel started over occupying the place on the footpath for sleeping. It is also in the evidence that at that time the accused as also the victim hurled abusive language to each other. The accused being excited all of a sudden brought out a wooden stick from the room and assaulted the victim. ( 11 ) ON carefully scanning the evidence of the eyewitnesses in the present case, we do not find any reason to disbelieve the said witnesses and we hold that it was the appellant and the appellant alone who inflicted the injury on the Victim Ramgati, as a result of which the victim died. But considering the entire evidence on record, we find that the incident took place in a spur of moment and in the heat of passion over a sudden quarrel as discussed above. The manner in which the injuries were inflicted and the circumstances in which such incident took place clearly negative any suggestion of premeditation. lt was in a sudden quarrel, to some extent provoked by the deceased also/that the appellant assaulted the victim. ( 12 ) WE are supported in this view by a number of judgments of the hon'ble Supreme Court reported in AIR 1981 SC 1552 (Jagrup Singh v. State of Haryana), AIR 1983 SC 463 (Jagtar Singh v. State of Punjab), AIR 1990 SC 2252 (Hem Raj v. The State (Delhi Admn.) and AIR 1999 SC 1428 (K. Ramakrishnan Knnithan v. State of Kerala ). 14. In view of the discussion made above the following the ratio of the judgments of the Hon'ble Supreme Court as referred to above, even accepting the prosecution case, we are of the view that the accused appellant did not commit any offence under Section 302 of the Indian Penal code, but under Section 304 Part-ll of the Indian Penal Code. 15. Accordingly, this appeal is allowed in part. 15. Accordingly, this appeal is allowed in part. The conviction of the appellant for the offence under Section 302 I. P. C. and sentence of imprisonment for life is hereby set aside. Appellant is convicted for having committed an offence under Section 304 Part-ll, I. P. C. and he is sentenced to suffer R. I. for 7 years and to pay a fine of Rs. 2,000/-, in default to suffer r. I. for a further period of 6 months. Accused appellant, who is now in custody, will serve out the remaining period of sentence.