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2007 DIGILAW 123 (CAL)

Badal Sardar v. STATE OF WEST BENGAL

2007-02-27

ALOK KUMAR BASU, KALIDAS MUKHERJEE

body2007
Judgment : KALIDAS MUKHERJEE, J. (1) THIS appeal is directed against the judgment of conviction and sentence passed by the learned Additional Sessions Judge, 1st Court-Alipore, 24-Parganas (South) in Sessions Case No. 6 (10)/90 corresponding to the Sessions Trial No. (4)/92 convicting the accused persons and sentencing them to suffer imprisonment for life under section 302/34 Indian Penal Code. One Dibakar Sardar lodged the complaint with the police station alleging that on 8. 7. 87 at about 5. 30 a. m. he along with his father Kalipada, uncle nemai Sardar and cousin Nirmal Sardar went to plough their lands at plot no. 980. Suddenly his neighbour and cousin brother Bhola Sardar, Badal sardar, Kartick Sardar, Ganesh Sardar and Subal being armed with lathi, spears, sword, iron rod came to assault them. The informant Dibakar and his father Kalipada were running away out of fear and Kalipada being an old person fell down on the ground. Bhola struck Kalipada on the head with iron rod and the others assaulted Kalipada with lathi. Those persons started dragging him towards the house. The informant watched the matter from behind and saw that Anil Sardar, Gopal Sardar, Gopi Sardar, Gokul Sardar, goutam Sardar, Sentu Sardar, Debu Sardar, Akhil Sardar, Sachin Sardar and Dilip Sardar and many others being armed with deadly weapons joined them and kept on bringing Kalipada, beating him all the way. Gopi had a pipe gun, Sunder had a bill hook used for cutting trees and Probin had a sword. When they came near the house, Probin assaulted Kalipada on the back by means of the sword and others assaulted him at random and took him to Battala. Kalipada was taken in a van with the help of the relatives and others to Momrejgarh Hospital. After receipt of the complaint the case was started and after completion of investigation police submitted charge-sheet. The learned Trial Judge framed charge under section 302/34 ipc to which the accused persons pleaded not guilty and claimed trial. After completion of the trial the learned Judge found the accused persons guilty and recorded the order of conviction and sentence as stated above. The prosecution in this case has examined as many as twenty witnesses including the informant, the witnesses to the occurrence, witness as to the inquest, the Investigation Officer and the doctors who examined Kalipada and the autopsy surgeon. The prosecution in this case has examined as many as twenty witnesses including the informant, the witnesses to the occurrence, witness as to the inquest, the Investigation Officer and the doctors who examined Kalipada and the autopsy surgeon. P. W. 2, P. W. 10 and P. W. 11 were declared hostile by the prosecution. (2) MR. J. N. Ram appeared on behalf of the appellants No. 1, 2, 9, 11 and 13 and submitted that Bholas involvement was not supported by medical report and that no independent witness was examined and the history of the assault was not stated to the doctor. It is further contended that in absence of independent and reliable witnesses the order of conviction and sentence is not sustainable. Mr. Sujay Bhattacharya appearing for the appellant Nos. 3-8, 10, 12, 14-18 submitted that the prosecution could not establish the alleged place of occurrence from where the injured was taken to the hospital; that the appellants are the near relatives of the informant and civil suit was pending between the parties and that there are discrepancies as to the nature of injuries and number of injuries and that there is no evidence towards the element of common intention under section 34 IPC. (3) MR. Subhasish Pachal, the learned P. P., appearing on behalf of the state has contended that the incident took place at paddy field where the victim was assaulted initially by five persons and subsequently the other accused persons joined them and started dragging Kalipada towards his house. It is the contention of Mr. Pachhal that minor discrepancies should be ignored and the evidence of P. W. 1, 2, 4, 5 and 6 taken together with the medical evidence, will go to show that the order of conviction and sentence is sustainable. (4) THE learned Trial Judge observed that the oral testimony of the witnesses established that Kalipada Sardar was brought before the witnesses in serious, unconscious and gasping condition and that Kalipada Sardar died during the course of medical examination soon after he was brought to the baruipur Hospital. (4) THE learned Trial Judge observed that the oral testimony of the witnesses established that Kalipada Sardar was brought before the witnesses in serious, unconscious and gasping condition and that Kalipada Sardar died during the course of medical examination soon after he was brought to the baruipur Hospital. The learned Trial Judge has further observed that by taking into consideration all pieces of evidence oral and documentary and other circumstances prevailing, he had no hesitation in coming to a conclusion that the prosecution was able to prove beyond reasonable doubt that the accused persons were responsible for causing death of Kalipada sardar by assaulting him with various weapons like iron rods, lathis, sword etc. Now we are to dwell on the merits of the case and find whether the order of conviction and sentence against the appellants is sustainable or not. From the evidence on record it appears that the incident allegedly took place on 8.7.87 at about 6.30 a. m. as per the First Information Report. As regards the alleged place of occurrence, it is in the First Information Report that victim Kalipada was initially assaulted by five persons and he was dragged to a Battala wherefrom he was taken by a van to Momrejgar hospital. P. W. 1 Dibakar Sardar has stated in cross-examination that he and his father ran towards Dewanganj from their land and the place where his father fell down was at a distance of about half mile from the house of the inhabitants of the Dewanganj. It is also in his evidence that he was at a distance of about 100 to 150 cubits from the place at which his father fell down. P. W. 2 was declared hostile, P. W. 3 could not identify the assailants, P. W. 9 has stated that an injured was taken by cycle van from the place of dharamthakur to Momrejgar Hospital. It is in the evidence of P. W. 10 that kalipada was found lying by the side of his grocery. It is, therefore, clear that as to the alleged place of occurrence wherefrom the injured Kalipada was taken to Momrejgar Hospital, there is no convincing evidence. (5) P. W. 4 on which the prosecution placed much reliance has stated in his examination-in-chief that Subol, Kartick, Bhola, Badal and Ganesh came to assault him in a body and they assaulted him. It is, therefore, clear that as to the alleged place of occurrence wherefrom the injured Kalipada was taken to Momrejgar Hospital, there is no convincing evidence. (5) P. W. 4 on which the prosecution placed much reliance has stated in his examination-in-chief that Subol, Kartick, Bhola, Badal and Ganesh came to assault him in a body and they assaulted him. In the cross-examination he stated that he got treatment from a local doctor for the assault as caused on him by five persons but he could not remember the name of the local doctor who lives in his village. He has also stated that there is civil suit between the parties. The evidence of P. W. 4 is said to be an eye-witness, does not inspire confidence. It is also in the evidence of P. W. 1 that there are litigations between the parties. P. W. 5 has stated that he did not state to anybody about the incident after coming back to his village. P. W. 6 is the son of victim Kalipada. He also did not state to anybody as to how the injuries were sustained by his father. He also stated that he did not state to the doctor of Momrejgar Hospital as to how his father sustained injuries. P. W. 7 who is the inhabitant of Dewanganj also did not see as to how Kalipada was injured and also he did not state anything to the doctor. This abstinence of the witnesses from stating the names of the assailants to the doctor is not in consonance with ordinary human conduct. This is also an improbability for which the prosecution case is bound to be viewed with suspicion. It is also worth mentioning here that independent witnesses, although available, were not examined and the non-examination thereof, in the circumstances of the case, casts a shadow of doubt on the prosecution case. (6) MR. Bhattacharya put much emphasis on the point of injuries and submitted that there are grave discrepancies between the ocular version and the medical evidence. We find that P. W. 20 was the first doctor who examined the victim on 08.07.1987 at Momrejgarh Hospital and found 8 injuries on his person. It is in evidence that the victim was referred to baruipur Hospital where P. W. 16 examined the victim and found 6 injuries. We find that P. W. 20 was the first doctor who examined the victim on 08.07.1987 at Momrejgarh Hospital and found 8 injuries on his person. It is in evidence that the victim was referred to baruipur Hospital where P. W. 16 examined the victim and found 6 injuries. The Autopsy Surgeon (P. W. 19) on examination and dissection found 16 injuries. There is no explanation as to the increasing number of injuries from the time of examination of the victim by the first doctor till the post-mortem examination. On perusal of the medical evidence, we are of the considered view that because of the discrepancies as to the number and nature of injuries, it is very hard to believe the prosecution case as set forth in the FIR. In other words, the prosecution evidence in its totally, because of the grave discrepancies, and serious improbability, is not worthy of credence and it cannot form the basis of conviction. We are, therefore, constrained to hold that the learned Trial Judge misdirected himself in appreciation of the evidence and, therefore, was not justified in recording the order of conviction and sentence. The prosecution has failed to bring home the charge against the appellants and we, therefore, find merit in this appeal. The appeal is allowed. The impugned judgment of conviction and sentence is, therefore, set aside. The appellants are acquitted of the charge and they are discharged from their respective bail bonds. Appeal allowed.