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2008 DIGILAW 526 (CAL)

Badal Dey v. STATE OF WEST BENGAL

2008-05-13

G.C.GUPTA, KISHORE KUMAR PRASAD

body2008
Judgment :- (1.) THIS appeal is directed against a judgment dated 20th Janaury, 2004 passed by Sri K. R. Ahmed, the learned Additional Sessions Judge, 2nd Court, Berhampore, Murshidabad in Sessions Trial No. 680 of 2002 arising out of G. R. Case No. 485 of 1996 convicting the appellants under section 302 read with section 34 of the Indian Penal Code and an order dated 21st January, 2004 by which the appellants were sentenced to suffer rigorous imprisonment for life and also to pay fine of Rs. 5,000/-each, in default to suffer further rigorous imprisonment for six months each. (2.) THE accused Nemai Pal, Kalu Pal and Babu Pal, tried as the co-accused, have been acquitted from the charges under section 302 read with section 34 of the Indian Penal Code. (3.) BRIEFLY stated the prosecution case is that on 4th April, 1996 at about 4. 00 P. M. the appellants Badal and Nakul aided by the appellants Sanjoy and Santi, hurled two bombs at Santosh Nandi. As a result he fell down. Wife of the victim Santosh who was following him raised hue and cry. The local people rushed to the place of occurrence. The victim disclosed the names of the assailants. He was lifted on a van and was sought to be taken to a hospital but he died on the way. Seven persons were chargsheeted. Four of them have been convicted and the balance three have been acquitted as already indicated. (4.) THE appellants Sanjoy and Santi were released on bail on 15th March, 2004. The appellant Nakul was released by an order dated 22nd June, 2004 as an interim measure which remained effective until 30th September, 2004. Inspite of expiry of the period of interim bail he appears to be at large. On 5th May, 2008 when the appeal was taken up for hearing, we directed the Superintendent of Police of the concerned district to take him into custody at once. The Superintendent of Police vide his memo No. 350/l. C. dated 8. 5. 2008 has reported that the said Nakul Nandy had been arrested on 8th May, 2008. The Information Slip furnished by the learned counsel appearing for Nakul goes to show that Nakul Nandy was produced under arrest before the Court of learned Chief Judicial Magistrate, Murshidabad on 09. 05. 08 and he is now in jail. 5. 2008 has reported that the said Nakul Nandy had been arrested on 8th May, 2008. The Information Slip furnished by the learned counsel appearing for Nakul goes to show that Nakul Nandy was produced under arrest before the Court of learned Chief Judicial Magistrate, Murshidabad on 09. 05. 08 and he is now in jail. (5.) P. W. 1, Durga Rani Nandi, widow of the victim Santosh is the eye-witness to the incident. She deposed as follows: "i am complainant in this case. Santosh Nandi, since deceased, was my husband. About 7 years back in the month of Chaitra he has expired at about 4 p. m. At the time of incident I was going to take drinking water from tubewell. At that time my husband told me that he will go to the house of Ramananda. As such I followed him. I found Badal Dey also followed him. At that time I found Badal Dey hurled bomb aiming to my husband. I also found Nakul Nandi also hurled bomb on my husband. I cried out. My husband fell down on the ground on receipt of bomb injury. Then Sanjoy Nandi and Santi Das gheraoed my husband. Hearing my shouting the para people came there. My husband narrated the incident to the para people. Thereafter myself and other para people took my husband in a van for his medical treatment and proceeded towards hospital but on the way to hospital he succumbed to injury. I lodged a written complaint at Rejinagar P. S. I am an illiterate. One Milan wrote the petition of complaint under my dictation. It was read over and explained to me and then I put my L. T. I, on the petition of complaint in presence of Milan. Police came to P. O. The accused persons are present on the dock (identified). (6.) MR. Bagchi, the learned Advocate, appearing for the appellant No. l, Badal, submitted that the evidence of P. W. 1 suggests that the appellants Sanjoy and Santi reached the place of occurrence after the victim had fallen down consequent to bombing by the appellants, Badal and Nakul. (7.) THE submission of Mr. Bagchi does not appear to be well founded for the following reasons. (7.) THE submission of Mr. Bagchi does not appear to be well founded for the following reasons. (8.) THE written complaint lodged by the P. W. 1 explains her evidence that Sanjoy and Santi surrounded the victim from the front side and Badal and Nakul hurled bomb from the backside at the victim. The evidence obviously was given in vernacular which has been translated by the learned Presiding Officer in English. The learned counsel, in our opinion, is seeking to take advantage of the imperfect translation of the evidence given by the P. W. I. The question of gheraoing or surrounding the victim after the bombs had been exploded and the victim had fallen down would not have arisen. There is no suggestion given to the P. W. 1 that the appellants Santi and Sanjoy came to the place of occurrence after the bombs had been hurled at the victim. (9.) THE written complaint was scribed by the P. W. 6 Milon. He has deposed that the written complaint was scribed by him according to the instructions of P. W. I, Durga Rani Nandi. After writing the complaint, he read over and explained to her, and thereafter she put her left thumb impression on the written complaint in his presence. (10.) P. W. 6 has also signed this written complaint as a scribe. The written complaint has been marked Exhibit 2. (11.) P. W. 3, Fultusi, corroborated the evidence of P. W. I. She deposed that "i saw that Badal and Nakul were hurling bomb on my brother Santosh. I also found Santi Das and Sanjoy Dey were standing with Jhaba (pasli). I cried out. The para people rushed to the P. O. On query Santosh told the para people that Badal and Nakul hurled bomb on him and he also told that the other 2 accused persons detained him. Thereafter the aforesaid four accused persons fled away. All four accused persons are present on the dock (idfd.). " p. W. 4, Sandhya, deposed that the names of the assailants were disclosed by the victim himself. Her evidence in this regard is as follows: "at the time of incident I was present in the door of my house. I heard the sound of two bombs bursting. Thereafter, I came out from the house and found Badal, Nakul, Santi and Sanjoy were fleeing away towards south. Her evidence in this regard is as follows: "at the time of incident I was present in the door of my house. I heard the sound of two bombs bursting. Thereafter, I came out from the house and found Badal, Nakul, Santi and Sanjoy were fleeing away towards south. Thereafter I rushed to the P. O. and Santosh told in presence of village people that Badal and Nakul hurled bomb on him while Sanjoy and Santi were guarding there. " P. W. 5 corroborated the evidence of P. W. 4. He deposed as follows: "on query Santosh told me that Badal and Nakul hurled bomb on his back side while Sanjoy and Shanti detained him showing lathi and jhaba. The aforesaid persons whose name I have stated are present on the dock (idfd.)" (12.) THE fact that after bombing the appellants flew away from the place of occurrence has also been deposed by the P. W. 4 which we have already noticed. (13.) P. W. 2, Mantu, corroborated the evidence of P. W. s, 3, 4 and 5. He deposed that "sometimes thereafter I heard a sound of bomb. Immediately I returned back near the house of Gurupada and found Santosh Nandi was lying there. Santosh told me to make arrangement to shift him to Hospital. He also told me that he sustained bomb injury. He also told me that Badal Dey, Nakul Nandi, Sanjoy Nandi and Shanti Das caused bomb injury on him. Then I saw the aforesaid four persons were fleeing away. " (14.) MR. Bagchi, then contended that the evidence of P. Ws. 2, 3, 4 and 5 as regards the dying declaration of the victim concerning the identity of the assailants is at variance with the evidence of P. W. 1. He added that the P. W. 1 did not repreduce the exact words uttered by her husband. He submitted that the evidence of P. Ws. 2 to 5 becomes suspect when the same is compared with the evidence of the P. W. 1. (15.) WE already have indicated that the P. W. 1 deposed that "my husband narrated the incident to the para people. " The fact that the victim made a dying declaration is deposed to by the P. W. 1. 2 to 5 becomes suspect when the same is compared with the evidence of the P. W. 1. (15.) WE already have indicated that the P. W. 1 deposed that "my husband narrated the incident to the para people. " The fact that the victim made a dying declaration is deposed to by the P. W. 1. We can visualize the situation that after the incident had occurred, the people rushed to the place of occurrence and enquired of the victim as what had happened and how it had happened. In reply to their questions, the victim must have answered which was deposed to by the P. W. s. 2,3,4 and 5. P. W. 1 saw her husband answering to the questions of the people who had assembled at the place of occurance. (16.) WE are, therefore, unable to see any substance in the submissions advanced by Mr. Bagchi. (17.) AS regards the physical condition of the victim immediately after the bomb was hurled, the witnesses have deposed as follows. (18.) P. W. 2 deposed that "santosh told me to make arrangement to shift him to hospital". In his cross-examination, the P. W. 2 deposed as follows :- "when I found Santosh he was lying severe bleeding injury. When I reached to the P. O. , I found four or five persons already attended there. When I saw him he was not so weak. Except injury he was otherwise normal. " p. W. S, Fultusi, in her cross-examination deposed that "at the relevant time, my brother had speaking capacity. " P. W. 4 in his cross-examination deposed that "at the relevant time Santosh was not semi-conscious. He was in sitting position. His head was upward. " p. W. 5 in his cross-examination deposed as follows: "santosh also told me that the aforesaid four accused persons assaulted him at the instance of one Kalu Pal, Babu Pal and Nemai Pal. I have stated the aforesaid fact to Daroga Babu. " (19.) HE also deposed in his cross-examination that "santosh was feeling severe pain." (20.) CRITICIZING the evidence of the witnesses discussed above, Mr. Batabyal, the learned Advocate, appearing for the appellants No. 2 to 4, submitted that the evidence of the P. Ws. I have stated the aforesaid fact to Daroga Babu. " (19.) HE also deposed in his cross-examination that "santosh was feeling severe pain." (20.) CRITICIZING the evidence of the witnesses discussed above, Mr. Batabyal, the learned Advocate, appearing for the appellants No. 2 to 4, submitted that the evidence of the P. Ws. 1, 2, 3, 4 and 5 has to be considered with a pinch of salt because each one of them is related to the victim and they are interested witnesses. He added that the victim, who died shortly after the incident, cannot be expected to have himself disclosed the names of the assailants. In support of his submission, he relied on the evidence of Dr. Santosh Kumar Binna, P. W. 13, who deposed that "in such a case there may be immediate loss of consciousness which would not be regained. The speaking capacity also would be lost. " (21.) MR. Goswami, the learned Public Prosecutor, submitted that the P. W. 13 deposed about a possibility. There is vast difference between "may be" and "must be". The P. W. 13 did not give any definite opinion in that regard. Moreover, evidence of an expert cannot be preferred to that of the eye witness. The expert was giving an opinion. He evidently had neither examined the victim nor had conducted the post mortem examination. He was merely talking about a possibility which cannot be treated as certainty. He submitted that the evidence of the eye witness is preferable to that of an expert. In support of his submission he relied on a judgment in the case of S. B. Mader v. State of Mysore reported in 1980 (1) SCC page 479 wherein Their Lordships held that the opinion of the doctor that looking to the injuries he was of the view that shock would have been instantaneous cannot be conclusive on a question of the ability of the deceased to talk. " (22.) IN the case before the Apex Court, the doctor, who had given the opinion, had the benefit of examining the victim. Even then the evidence of the eye witnesses was preferred. In the present case, the doctor was giving the opinion merely on the basis of the post mortem report. (23.) THE evidence of P. Ws. 1, 2, 3, 4 and 5 has remained unshaken during cross-examinations. Even then the evidence of the eye witnesses was preferred. In the present case, the doctor was giving the opinion merely on the basis of the post mortem report. (23.) THE evidence of P. Ws. 1, 2, 3, 4 and 5 has remained unshaken during cross-examinations. We are inclined to hold that there is no reason to doubt the veracity of the witnesses. The opinion expressed by the P. W. 13 cannot be overemphasized when there is dependable evidence to show that immediately after the incident, the deceased had the speaking power and did, in fact, disclose the names of the assailants. (24.) MR. Batabyal then submitted that the P. W. 9 deposed that the P. W. I Durga Rani, P. W. 3 Fultusi and the P. W. 4 Sandhya came to the place of occurrence when Santosh already had expired. He submitted that on the basis of the evidence of P. W. 9, the evidence of the P. Ws. 1, 3 and 4 has clearly been discredited. We are unable to accept this submission. (25.) P. W. 9 is a seizure witness. The police arrived at the place of occurrence after 7 P. M. The written complaint was received by the police at 7.45 P. M. The seizure was made at 21. 10 hours which has been marked Exhibit 3 which was witnessed by the P.W. 9. (26.) THE P. W. 9, in his examination-in-chief, deposed that he was present at the time of seizure of articles. In his cross-examination, the P. W. 9 deposed that Santosh died in his presence. He further deposed that after half-an-hour of his arrival at the place of occurrence, the police came. We have dependable evidence to show that the incident took place at 4. 00 P. M. The victim was sought to be shifted then and there, but on the way he died. The evidence of the P. W. 9 that Santosh died in his presence is not believable because Santosh did not die at the place of occurrence. He died on the trolley in which his body was laid for the purpose of taking him to hospital. The evidence of the P. W. 9 that the police came within half-an-hour is also an untrue statement because the police came more than three hours after the incident. The evidence of P.W. 9, that P. Ws. He died on the trolley in which his body was laid for the purpose of taking him to hospital. The evidence of the P. W. 9 that the police came within half-an-hour is also an untrue statement because the police came more than three hours after the incident. The evidence of P.W. 9, that P. Ws. 1, 3 and 4 came to the place of occurrence after the P. W. 9 had reached there, is not believable. He deliberately sought to wreck the case of the prosecution during his cross-examination. (27.) LASTLY, it was submitted by Mr. Batabayal that the evidence of the P. W. 11, constable, Sunil Kumar Roy, is that he took the deadbody of the deceased from Kamnagar Telipara to Berhampore Hospital Morgue. He submitted that the evidence of the P. Ws. 1, 2, 3, 4 and 5 that the victim was sought to be taken to the hospital is, therefore, untrue. We have already noticed the evidence that on the way to the hospital the victim died. No one has suggested that the victim was actually taken to hospital. Therefore, the fact, that the body was taken to the morgue from the same village where the incident took place, is not inconsistent with the evidence of the P. Ws. 1 to 5. (28.) FROM the evidence adduced by the prosecution, the following facts and circumstances appear to have been firmly established:- (a) Shortly after the incident written complaint disclosing the names of the assailants was lodged which has been marked exhibit 2. (b) From the inquest report marked exhibit 1, it appears that the backside of the victim was severely injured. The evidence of the witnesses is that the appellants Badal and Nakul hurled bomb from the backside of the victim. (c) The sketch map exhibit 6 goes to show that the place of occurrence is between the house of Mukti and the cowshed of Gurupada. (d) Exhibit 3 seizure list goes to show that in between house of Mukti and the cowshed of Gurupada bloodstained and controlled earth and explosive remnants of the exploded bombs were recovered and seized. (e) The Post-Mortem Report marked exhibit 7 goes to show that lacerated injury due to tear of blood vessels caused the death of the victim. (f) From the evidence of P. Ws. (e) The Post-Mortem Report marked exhibit 7 goes to show that lacerated injury due to tear of blood vessels caused the death of the victim. (f) From the evidence of P. Ws. 1 and 3 it appears that the accused Santi and Sanjoy armed with pasli surrounded the victim and the accused Badal and Nakul hurled the bombs on the body of the victim which caused his death. (g) The complicity of the appellants has been firmly established by the dying declaration. (29.) WE are under the circumstances of the opinion that the view taken by learned Trial Judge is well founded. (30.) WE are also of the opinion that no interference with the judgment and order under challenge is called for. The appeal is, as such, dismissed. (31.) THE bail granted by this Court to the appellant Nos. 3 and 4 namely Sanjoy Nandi and Santi Das is cancelled. They are directed through their Advocate to forthwith surrender before the Court of learned Trial Judge and to serve out the remaining part of their sentences as awarded by the learned Trial Court. The remaining two appellants namely Badal Dey and Nakul Nandi are in judicial custody. They are directed to serve out the remaining part of their sentences as awarded by the learned Trial Court. Appeal dismissed.