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2008 DIGILAW 784 (CAL)

Kalipada Bouri v. STATE OF WEST BENGAL

2008-08-04

G.C.GUPTA, PARTHA SAKHA DATTA

body2008
Judgment :- GUPTA, J. (1) THIS appeal arose out of a judgment and order dated 22nd february, 1989, passed by the learned Assistant Sessions Judge, Purulia, in sessions Case No. 133 of 1987 arising out of G. R. Case No. 2040 of 1982 convicting all the appellants under section 307 read with Section 34 of the indian Penal Code and Section 326 of the Indian Penal Code. They were sentenced to suffer imprisonment for a period of eight years for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. The accused Kushadhaj Mondal, Kalipada Bouri, Mohn Routh and Ramprosad routh were sentenced to suffer in addition imprisonment for a period of five years for the offence punishable under Section 326 of the Indian Penal Code. Both the substantive sentences were, however, directed to run concurrently. All the ten convicts came up in appeal. They were enlarged on bail by an order dated 20th July, 1989. (2) BRIEFLY stated the facts of this case are as follows : on 8th November, 1982, at about 8. 30 P. M. in the evening when the victim Debu Bouri and his brother Labu Bouri were returning from their field, they were attacked by the accused persons. Kushadhaj Mondal and Mohan routh exploded a bomb targeted at Debu Bouri which injured him severely. The accused Kalipada Bouri and Ramprosad Routh were armed with tangi and tabla respectively. They attacked Labu Bouri inflicting severe injuries. The rest of the accused persons accompanying the aforesaid four had aided and abetted the aforesaid four persons in perpetrating the crime. The victims debu Bouri and Labu Bouri ran for their lives but fell down and both became unconscious one after the other. The P. W. 1, Gumapada Bouri, victims sisters son, got in touch with the Station Master, Ram Kanali Railway Station and an information through him was lodged with the concerned police station. The police thereafter came and removed the injured persons to the local hospital. The condition of both the victims was very serious. The P. W. 12, Dr. Amitava chatterjee, performed surgical operation both upon Debu Bouri and Labu Bouri. The following injuries were found on the body of Debu Bouri: "1. The police thereafter came and removed the injured persons to the local hospital. The condition of both the victims was very serious. The P. W. 12, Dr. Amitava chatterjee, performed surgical operation both upon Debu Bouri and Labu Bouri. The following injuries were found on the body of Debu Bouri: "1. One lacerated wound over the right shoulder region (anterior aspect)5" in length, elliptical in shape, breadth being 4" at the broadest part with protruding devitalized muscles of the antrolateral aspect of the right shoulder joint with considerable bleeding from the wound. Skin margins widely gaped, irregular and black. On further examination, it is seen and felt that the head of the right humerous is dislocated, fractured in pieces and detached without any soft tissue attachment. Several detached fragments of bone from the shaft of the distal humerous were also noted. Fragments of fractured bones from the lateral border of the right scapula were also seen. Necessary debridement done. Wounds were surgically managed. Proper management of the wound was done. " (3) ACCORDING to the P. W. 12, Dr. Amitava Chatterjee, the injury suffered by the victim, Debu Bouri, was grievous in nature and appeared to have been caused by explosion of bomb. (4) ACCORDING to the P. W. 12, Dr. Amitava Chatterjee, the victim, Labu bouri, suffered the following injuries : "1.-One abrasion on the middle of back. 2.-An injury on the left arm, examined under anesthesia. On the same date, X-ray of left elbow was done. X-ray showed communicated supra condylor fracture of the left humerous. Left elbow and left lower arm wore goosely (?) swollen of the cut injury over the extensor surface of the left arm, just above the point of the elbow were removed. The stitches were removed. On further exploration on the lower end of the left humerous found fractured above the condyle with displacement of the fragments. Necessary surgical treatment was done. " (5) THE injuries suffered by the victim Labu Bouri were grievous in nature and appeared to have boon inflicted, according to Dr. Chatterjee, P. W. 12, by weapon like tangi. Both the victims, Debu Bouri and Labu Bouri, were examined as P. W. 7 and P. W. 9 during the trial. The evidence of Debu Bouri, p. W. 7, and Labu Bouri, P. W. 9, as regards injuries suffered by them was corroborated by the evidence of Dr. Chatterjee, P. W. 12, by weapon like tangi. Both the victims, Debu Bouri and Labu Bouri, were examined as P. W. 7 and P. W. 9 during the trial. The evidence of Debu Bouri, p. W. 7, and Labu Bouri, P. W. 9, as regards injuries suffered by them was corroborated by the evidence of Dr. Chatterjee, P. W. 12, who performed the surgical operation upon them. It has come on the record that both the victims became unconscious immediately after the assault. They were taken to the local hospital. On the following day the victims regained consciousness and told the relatives as well as the parents about the names of the assailants who had inflicted the injuries. (6) AS regards the complicity of Kushadhaj Mondal, Mohan Routh, kalipada Bouri and Ramprosad Routh , there is perfect unanimity among the witnesses. In so far as complicity of the rest of the accused persons is concerned, the victims though have unanimously implicated them but the rest of the witnesses who had visited the victims in the hospital are somewhat vacillating. (7) MR. Basu, the learned Counsel, appearing in support of the appeal, submitted that the prosecution has left much to be desired. There is nothing on the record, according to him, as to what was the information lodged with the police. He submitted that we shall assume that the information to the police was routed through Ram Kanali Railway Station but the police before setting out from the police station must have recorded a diary indicating therein the information received which prompted them to go to the place of occurrence. The diary, according to him, is an important piece of evidence and that is conspicuous by its absence. (8) THE second submission advanced by Mr. Basu, the learned counsel, for the appellants, is that the patients initially must have been examined by some Doctor other than Dr. Chatterjee, the P. W. 12, who must have, as a specialist, performed the surgical operation at a later stage. The doctor who had occasion to examine the patients at the threshold, was not examined which is, according to him, a serious lacuna in the case of the prosecution. Chatterjee, the P. W. 12, who must have, as a specialist, performed the surgical operation at a later stage. The doctor who had occasion to examine the patients at the threshold, was not examined which is, according to him, a serious lacuna in the case of the prosecution. On the top of that, the medical papers, the nature of the injury and the treatment made available to the victims which are important for the court to know for the purpose of deciding a matter of this enormity are also conspicuous by their absence. (9) THE third submission advanced by Mr. Basu, learned Counsel, for the appellants, was that the oflicer, who removed these two patients to the local hospital, was not examined which is another weakness in the case of the prosecution. He, therefore, submitted that the conviction should be set aside and the appeal should be allowed. (10) MR. Kasem Ali Ahmed, the learned Counsel, appearing for the State-respondent, disputed each of Ihe submissions of Mr. Bose, learned Counsel, for the appellants. He submitted that the question for consideration is whether the verdict of conviction by the learned Trial Judge is a reasonable view taken on the basis of the evidence on record. He submitted that it is no good specifying things which are not on the record. One has to see whether the conviction can be upheld on the basis of the evidence already on record. He submitted that there is enough evidence to show that these four persons, namely, Kushadhaj mondal, Mohan Routh, Kalipada Bouri and Ramprosad Routh, inflicted grievous injury on these two persons and the other six persons actively aided and abetted them. They, as a matter of fact, gheraod these two persons ; Debu Bouri and labu Bouri. The four persons, named above, committed the assault. He submitted that the evidence on record is adequate. It cannot be said that the view taken by the learned Trial Judge is unsound, and, therefore, the appellate court should refrain from interfering with the judgment and the order impugned in this appeal. (11) WE have perused the evidence both oral and documentary. We have considered the submissions advanced by the learned Counsel, appearing for the parties. It is true that the bed-head ticket and the other medical papers indicating treatment made available to the victims were not produced before the Court. (11) WE have perused the evidence both oral and documentary. We have considered the submissions advanced by the learned Counsel, appearing for the parties. It is true that the bed-head ticket and the other medical papers indicating treatment made available to the victims were not produced before the Court. But the fact remains that the surgeon, who performed the surgical operation upon the victims, was examined, and according to him, the injuries inflicted upon Debu Bouri and Labu Bouri were grievous in nature. We have evidence of the Investigating Officer before us who deposed that the condition of both the victims was so precarious that he also had requested the attending physician to make arrangement for recording their dying declarations. No such declaration was, however, recorded ; but the declaration, even if the same had been recorded, would not have been of much importance for the simple reason that the victims Debu Bouri and Labu Bouri fortunately survived. Therefore, we do not think that the absence of the medical papers goes to cast any doubt as regards veracity of the evidence of the victims themselves and dr. Chatterjee, P. W. 12, who performed the surgical operations. (12) IT is true that the officer, who removed the victims to the local hospital, was not examined, but the cross-examination of the investigating officer does not reveal that by reason of non-examination of that officer, the defence has been in any way prejudiced nor was the same demonstrated by mr. Basu. We have before us all the requisite information through the witnesses examined by the prosecution. (13) THE absence of the diary recorded by the police before leaving the police station is not material because both the victims at the material time were unconscious and they regained consciousness on the following day in the hospital, there is no eye witness except the victims themselves. Therefore, the case has to be decided on the basis of their evidence. They are the best persons to tell us, as to how did the incident happened and who were the authors of the crime. Wo are convinced after perusing the evidence both oral and documentary that the conviction of the appellants, Kushadhaj Mondal, mohan Routh, Kalipada Bouri and Ramprosad Routh under Section 326 is well founded and cannot be disturbed. They are the best persons to tell us, as to how did the incident happened and who were the authors of the crime. Wo are convinced after perusing the evidence both oral and documentary that the conviction of the appellants, Kushadhaj Mondal, mohan Routh, Kalipada Bouri and Ramprosad Routh under Section 326 is well founded and cannot be disturbed. (14) THE conviction of the appellants, Sadananda Routh, Hridayananda routh, Bhim Mondal, Durgadas Mondal, Bharat Mondal and Madhu Bouri, however, does not stand on the same pedestal. The evidence against them is that these persons had pressed the victims. If they had really pressed the victims, then possibly Debu Bouri, P. W. 7, and Labu Bouri, P. W. 9, would not have survived to tell the story to the Court. Had the story of the prosecution been confined as far as these six appellants are concerned that they had gheraoed the victim, as urged by Mr. Ahmed, possibly the things would have been different. Debu Bouri, P. W. 7, to be specific has deposed as follows : "thereafter accused Sadananda, Hridayananda, Dugai Mandal, Bhim mandal and Modhu Bauri began to press me and assault me. Accused bharat caught hold of my brother Labu. " labu Bouri, P. W. 9, has deposed as follows : "then accused Sadananda, Hridayananda, Dugai Mondal, Bhim mondal and Madhu Bouri pressed my elder. Then accused Bharat mondal caught hold of me. " (15) WE are not suggesting that Debu Bouri, P. W. 7, and Labu Bouri, p. W. 9, falsely implicated these six persons. But we are a little hesitant to accept this part of the evidence that they actively participated in the crime. Had that been so, the possibility of survival of these two victims would not have been there. There is no dependable evidence against them to show that they shared the common intention or that they aided or abetted the four persons whose convictions we already have indicated cannot be disturbed. We are, therefore, inclined to give these appellants benefit of doubt. (16) IN the result the appeal partly succeeds. The conviction of the appellants under section 307 of the Indian Penal Code, we are of the view, cannot be sustained, and therefore, the same is set aside. We are also of the view that the conviction of the appellant No. 5, Sadananda Routh, appellant no. (16) IN the result the appeal partly succeeds. The conviction of the appellants under section 307 of the Indian Penal Code, we are of the view, cannot be sustained, and therefore, the same is set aside. We are also of the view that the conviction of the appellant No. 5, Sadananda Routh, appellant no. 6, Hridayananda Routh, appellant No.7, Bhim Mondal, appellant No. 8, durgadas Mondal @ Dugai, appellant No. 9, Bharat Mondal and appellant No. 10, Madhu Bouri cannot bo sustained. All the appellants are on bail as indicated earlier. The appellant Nos. 5 to 10, named hereinabove, are discharged from their obligation of the bail bonds furnished by them. (17) THE appellant No. 1, Kalipada Bouri, appellant No. 2, Kushadhaj mondal, appellant No. 3, Mohan Routh, and appellant No. 4, Ramprosad Routh in connection with Sessions Case No. 133 of 1987 are directed to surrender to the bail at once. The concerned learned Irial Court is directed to take steps for immediate apprehension of these four appellants. The conviction and the sentence for the offence punishable under Section 326 of the Indian Penal code as against these four appellants being appellant Nos. 1 to 4, named hereinabove, are upheld and they shall serve out the rest of their sentence. They shall, however, get the benefit of Section 428 of the Code of Criminal procedure. They are exonerated of the conviction and sentence for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. (18) LET a copy of this judgment and the lower Court records be sent down to the concerned learned trial Court forthwith for information and necessary action. (19) LET urgent Xerox certified copy of this judgment, if applied for, be delivered to the learned Advocates, for the parties, upon compliance of usual formalities.