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2006 DIGILAW 87 (CAL)

STATE OF WEST BENGAL v. PURNENDU KUMAR PATRA

2006-02-16

ALOK KUMAR BASU, PRANAB KUMAR DEB

body2006
P. K. DEB, J. ( 1 ) THE Death Reference No. 4 of 2005 has been heard along with the Criminal Appeal No. 599 of 2005 preferred by the appellant Purnendu kumar Patra and another against the conviction and sentence under section 302 IPC passed by the Additional Sessions Judge, 1st Fast Track Court, Contai, purba Medinipur in Sessions Trial No. LV/march/04. ( 2 ) A case of murder was instituted following the death of a house-wife in acid burn injury. The alleged incident occurred in between the late night of 26. 10. 98 and the early morning of 27. 10. 98. The lady succumbed to her injury nearly a month thereafter. The prosecution case, as disclosed in the FIR and narrated by the witnesses during the trial, was to the effect that on the early hours of 27. 10. 98 the housewife called Saraswati Guchait opened the door of her house when the appellants called her from outside. The moment the door was opened, the appellants threw acid bulb on her. Writhing in pain, the housewife narrated the incident to her relations and neighbours who rushed to the spot to rescue her. She was initially taken to the police station wherefrom she was sent to the hospital for treatment. Apprehensive of her life and security in the hospital as well, the housewife sent a written FIR to the local police station for taking immediate steps against the miscreants. On receipt of such information from her, full-scale investigation was launched. ( 3 ) ON assuming charge, S. I. Dibakar Bhattacharya visited Contai Sub-Divisional hospital. He made a written prayer to the medical officer for having the dying declaration of the housewife recorded. The medical officer, however, declined to record her statement, as she reported to be progressing well. Meanwhile, the Investigating Officer visited the place of occurrence and prepared sketch map with index and examined the available witnesses. With the housewife succumbing to her injury on 23. 11. 98, steps were taken by him to hold the inquest over the deadbody. Afterwards the deadbody was sent to the hospital for post-mortem examination. Eventually, on examination of the available witnesses, seizure of the incriminating articles and collection of the papers including the post-mortem report, chargesheet was submitted. With the housewife succumbing to her injury on 23. 11. 98, steps were taken by him to hold the inquest over the deadbody. Afterwards the deadbody was sent to the hospital for post-mortem examination. Eventually, on examination of the available witnesses, seizure of the incriminating articles and collection of the papers including the post-mortem report, chargesheet was submitted. ( 4 ) FOLLOWING the commitment of the case to the Court of Session, charges under sections 326/34 IPC, 307/34 IPC and 302/34 IPC were framed against both the appellants. The appellants having pleaded innocence, the prosecution was called upon to prove the charges. As many as eleven witnesses were examined on behalf of the prosecution. Amongst them were the scribe, the eyewitnesses, the medical officer who got injured admitted in the hospital and also the medical officer who conducted the post-mortem. The police officers who took part in the investigation were also examined on behalf of the prosecution. ( 5 ) RELYING heavily on the evidence of the eye-witnesses and the supportive medical papers including the post-mortem report, the learned Additional District judge convicted both the appellants for commission of offence under section 302 IPC. Appellant Purnendu Kumar Patra was sentenced to death for commission of offence under section 302 IPC, subject to confirmation by the hon'ble Court. Appellant Rabin Jana was sentenced to rigorous imprisonment for life and fine of Rs. 25,000/-, in default, to suffer further rigorous imprisonment for five years for commission of offence under section 302 IPC. ( 6 ) DEATH sentence having been awarded, reference has been made. Aggrieved by, and dissatisfied with, the conviction and sentence, both the appellants have also filed a separate appeal. ( 7 ) APPEARING on behalf of the appellants, Mr. Sekhar Basu, Senior Counsel, has submitted that since infirmities are galore, the trial should have ended with the acquittal of the appellants. The trial, as contended by Mr. Basu, started with the defective charge. It was specifically mentioned in the charge that the incident occurred on 26. 10. 98 at 7 p. m. , whereas the witnesses claimed that the assault had taken place after midnight. The time of the incident as mentioned by the witnesses is altogether different from what is recorded in the charge. Deviating from the original stand, the prosecution sought to build up an altogether different story. 10. 98 at 7 p. m. , whereas the witnesses claimed that the assault had taken place after midnight. The time of the incident as mentioned by the witnesses is altogether different from what is recorded in the charge. Deviating from the original stand, the prosecution sought to build up an altogether different story. Such deviation, it is argued, has caused substantial prejudice to the appellant. ( 8 ) COMMENTING on the drafting of the FIR, Mr. Basu has argued that there is no reason and occasion for P. W. 7, a Court clerk, to record the complaint, sitting in the chamber of the Wardmaster in the hospital. There is nothing on record to suggest that the scribe was known to the injured. The story of the victim narrating the incident to a rank outsider well inside the chamber of the wardmaster, as such, cannot be believed. What prompted P. W. 7 to go to the hospital to draft the complaint is not known. The unnatural conduct of P. W. 7 gives a fair indication that efforts were made to entangle the appellants in false accusation of causing the murder, taking advantage of the injury sustained by a housewife called Saraswati Guchait. ( 9 ) COMMENTING on the inordinate delay in writing the FIR, Mr. Basu contends that there is no plausible explanation as to why the FIR was not lodged within few days of the incident. Despite the injured being sent to the hospital from the local police station, no effort was made to have the incident recorded in the form of FIR. Since the housewife was admitted with injuries, enquiry ought to have made as to her sustaining injuries. ( 10 ) MR. Basu contends that no reliance whatsoever should have been placed on the testimony of P. W. 1, P. W. 2 and P. W. 3. If they really had seen the occurrence, they ought to have divulged the fact to the villagers or at least to the police officers posted in the local police station. Their inaction for days together is mystifying. ( 11 ) APPEARING on behalf of the State, Mr. If they really had seen the occurrence, they ought to have divulged the fact to the villagers or at least to the police officers posted in the local police station. Their inaction for days together is mystifying. ( 11 ) APPEARING on behalf of the State, Mr. Kazi Safiullah, the learned Public prosecutor, has strongly defended the conviction and sentence against the appellants, contending that since the dying declaration was made by the injured herself, explaining in details about the role of the appellants, the Trial Court had every reason to act on it. Furthermore, what the injured stated as to her sustaining acid burn injury was duly corroborated by P. W. 1, P. W. 2, P. W. 3 and p. W. 5. They had the occasion to see the appellants right at the spot. They also found the housewife with severe burn injuries. The injured also narrated to some of them as to how acid had been thrown on her. The medical reports also lend support to her contention that she had received acid burn injuries. In view of such direct evidence, coupled with corroborative medical reports, the appellants were rightly convicted and sentenced for their active role in the commission of murder. ( 12 ) IN the instant case, four persons namely P. W. I Dipak Kr. Guchait, p. W. 2 Sudha Krishna Jana, P. W. 3 Sambhu Ram Das and P. W. 5 Sudhir Ch. Maity threw some light on the incident. They were reported to have rushed to the spot immediately after hearing the alarming call of the housewife called saraswati Guchait. As per statement of P. W. 1 Dipak Kr. Guchait, the incident occurred in the dead night of 27. 10. 98. He candidly stated that he could not identify the two assailants. However, he deposed that the assailants threatened him with dire consequences in the event of the injured person called Saraswati guchait being taken to hospital. The witness claimed that Saraswati Guchait reported to him that the two assailants namely Purnendu Kr. Patra and Rabin jana had thrown acid on her. P. W. 1 further disclosed that the injured was taken to Contai Police Station and thereafter she was shifted to Sub-Divisional hospital. It is P. W. 1 who got her admission in the hospital. The witness claimed that Saraswati Guchait reported to him that the two assailants namely Purnendu Kr. Patra and Rabin jana had thrown acid on her. P. W. 1 further disclosed that the injured was taken to Contai Police Station and thereafter she was shifted to Sub-Divisional hospital. It is P. W. 1 who got her admission in the hospital. The witnesses further alleged that injury on Saraswati Guchait was caused out of grudge, as she lodged a case of commission of rape on her by Purnendu Kr. Patra. ( 13 ) AS told by P. W. 2 Sudha Krishna Jana, on the early hours of 27. 10. 98, on hearing the hue and cry of Saraswati Guchait, he rushed to the spot where he found the accused persons coming out of her house with bottles in their hands. The witness also alleged that the accused persons had thrown acid on her. P. W. 2 also confirmed that the injured Saraswati Guchait was taken to Contai police Station and thereafter she was shifted to Contai Sub-Divisional Hospital. He disclosed that no attempt was made to apprehend the accused persons. No alarm was also raised when the accused persons were fleeing away. The witness even did not state before the Investigating Officer that the accused persons had thrown acid on Saraswati Guchait. ( 14 ) P. W. 3 Sambhu Ram Das deposed to the effect that on 27. 10. 98 in between 1 a. m. to 2 a. m. on hearing hue and cry, he rushed to the spot and found the accused persons threatening Saraswati Guchait. The witness claimed that the accused persons had poured acid on Saraswati Guchait. The witness claimed that Saraswati Guchait reported to her that Purnendu Patra poured acid on her out of grudge, as she filed a case of commission of rape on her by Purnendu kr. Patra. ( 15 ) P. W. 5 Sudhir Ch. Maity testified that on 27. 10. 98 at about 00. 30 hrs. the incident took place. On hearing hue and cry, he rushed to the spot where he found Saraswati Guchait with injuries. He alleged that the accused persons had thrown acid on her from their bottles. In cross-examination, he disclosed that Saraswati Guchait was writhing in pain on her courtyard. He never claimed to have heard anything from Saraswati Guchait. the incident took place. On hearing hue and cry, he rushed to the spot where he found Saraswati Guchait with injuries. He alleged that the accused persons had thrown acid on her from their bottles. In cross-examination, he disclosed that Saraswati Guchait was writhing in pain on her courtyard. He never claimed to have heard anything from Saraswati Guchait. Wherefrom he came to the reasoning that acid had been thrown by Saraswati Guchait is not known. In cross-examination, he admitted that he did not see the accused persons at the place of occurrence. The witness further acknowledged that he did not see the accused persons throwing acid on Saraswati Guchait. ( 16 ) FROM the statements of P. W. 1, P. W. 2, P. W. 3 and P. W. 5, it is quite clear that the witnesses did not see the appellants throwing acid on Saraswati guchait. P. W. 2 and P. W. 4 did not say anything about the victim lady narrating the incident to them. It was also unlikely for a lady writhing in severe pain to narrate the incident in detail to the rescuers. P. W. 2 and P. W. 4 mentioned about the appellants holding bottles of acid. The two other witnesses P. W. 1 and P. W. 3 are absolutely silent on that aspect. Seeing the miscreants moving off, the witnesses did not raise any alarm. No effort was also made to nab the miscreants. Those were against the normal human conduct. Had the witnesses P. W. 1, P. W. 2, p. W. 3 and P. W. 5 seen the incident from close range, they ought to have divulged the fact to the police officers manning the police station. The injured, as told by them, was taken to Contai Sub-Divisional Hospital from Contai Police Station. Despite the housewife being admitted with injuries on her person, no enquiry was made to ascertain the reasons for her sustaining burn injuries. It was p. W. I, a near relation of the victim, who got her admitted in the hospital. The lady was in the hospital for nearly a month. No attempt whatsoever was made by her near relations, the neighbours, the doctors attending to her and the police officers attached to Contai Police Station to lodge any FIR following the incident. There was sustained effort to keep everything in dark. The lady was in the hospital for nearly a month. No attempt whatsoever was made by her near relations, the neighbours, the doctors attending to her and the police officers attached to Contai Police Station to lodge any FIR following the incident. There was sustained effort to keep everything in dark. The local police station woke up from hibernation after receiving a written complaint. Only then they stirred into activities. The doctor, however, even at that stage declined to record the declaration of the victim on the pretext that the patient was progressing well. Their conducts were really shocking. ( 17 ) ANOTHER mystifying factor was the manner in which the complaint was lodged. The written complaint was drafted by P. W. 7, a Court clerk, well inside the chamber of Wardmaster of the hospital. Who called the Court clerk to draft the written complaint is not known. What prompted him to proceed to the hospital is shrouded in mystery. P. W. 7 acknowledged that he did not have any prior acquaintance with the lady. It is quite unbelievable that the housewife with severe injury on her person would narrate the incident to a rank outsider inside the hospital. P. W. 7 did not get requisite permission from the hospital authority to record the statements of the injured. The L. T. I. of the informant was not attested by any authority in the hospital. The conduct of P. W. 7 casts serious doubt as to whether the statements of victim were really recorded by him well inside the chamber of Wardmaster in the hospital. ( 18 ) THE Trial Judge passed the order of death sentence, ignoring some principles of law. The Trial Judge completely lost sight of the fact that there were inherent defects in the charge itself. The object of framing of charge is to give an idea to the accused persons as to what allegations they are required to meet. A wrong time of the incident was noted in the charge. The time as mentioned in the charge was altogether different from what the witnesses stated during the trial. The plea that the appellants were prejudiced, as such, cannot be ruled out. A wrong time of the incident was noted in the charge. The time as mentioned in the charge was altogether different from what the witnesses stated during the trial. The plea that the appellants were prejudiced, as such, cannot be ruled out. ( 19 ) THE object of examination of the accused persons under section 313 of the Code of Criminal Procedure is to afford an opportunity to the accused persons to explain the evidence and circumstances going against them. The accused persons must have a clear idea as to the statements going against them. Clubbing of all the statements in one question may create confusion, preventing the accused persons from explaining the circumstances. This is what has been done in the instant case. Several incriminating facts and circumstances have been clubbed together in one single question. Some other incriminating facts and circumstances were not put to the appellants for explanation in the examination under section 313 of the Code. ( 20 ) IT is claimed on behalf of the prosecution that there was strong motive behind the murder of Saraswati Guchait. Since she filed a case alleging commission of rape on her by the appellant namely Purnendu Kumar Patra, the appellants were biding for an opportune movement to get rid of the principal witness. In this connection, it may be mentioned that the other appellant Rabin jana was cited just as a witness in that case. There was apparently no reason whatsoever for that witness to pour acid on Saraswati Guchait. The house in question wedged between several houses. Her husband and sons were also inside her house at the time of the alleged incident. It is doubtful as to whether she was actually called at late hours in the night. It is equally doubtful as to whether she opened the door on receiving the call of a person who was alleged to have committed rape on her earlier. The story as presented through P. W. 1, P. W. 2, p. W. 3 and P. W. 5 is not believable. The statements of the principal witnesses are not consistent. Too much importance should not have been placed on the contradictory statements of the witnesses. Indifference and nonchalance on part of the near relations, neighbours, police officers and the doctor were not properly taken note of. Effort was made to entangle the appellants long after the alleged incident. The statements of the principal witnesses are not consistent. Too much importance should not have been placed on the contradictory statements of the witnesses. Indifference and nonchalance on part of the near relations, neighbours, police officers and the doctor were not properly taken note of. Effort was made to entangle the appellants long after the alleged incident. No enquiry was conducted for ascertaining the reasons for her sustaining injury. The statement of the injured was not recorded either. There should not have been conviction and sentence on such unsatisfactory materials before the Court. Added to it, were the defects in framing charges and examination of the appellant under section 313 of the Code of Criminal procedure. The conviction and sentence are, thus, found not sustainable. ( 21 ) IN the result, the death reference is rejected and Criminal Appeal No. 599 of 2005 perferred by the appellants namely Purnendu Kumar Patra and rabin Jana is allowed, setting aside the conviction and sentence passed by the learned Additional Sessions Judge, 1st Fast Track Court, Contai, Purba medinipur in Sessions Trial No. LV/march/04. Death reference rejected. Criminal appeal allowed.