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2009 DIGILAW 32 (CAL)

STATE OF WEST BENGAL v. Swapan Kumar Senapati

2009-01-27

GIRISH CHANDRA GUPTA, KISHORE KUMAR PRASAD

body2009
Judgment GIRISH CHANDRA GUPTA, J. :- This appeal preferred by the State is directed against a judgment and order dated 10th August, 1998, passed by Sri Nomit Mutsuddi, learned Additional Sessions Judge, Durgapur, in Sessions Trial No. 16 of 1997 arising out of Sessions Case No. 43 of 1994, acquitting the accused Swapan Kumar Senapati of the charges under Sections 341/325/304 of the Indian Penal Code. . 2. The facts and circumstances of this case briefly stated are as follows: On 22nd July, 1992, at about 11 hours in the morning Satkari Senapati, aged about seventy-six years, was severely assaulted by the accused Swap an Kumar Senapati. The victim was taken to the police station. From there he was sent to a private practitioner, Dr. Tapas Paul, for treatment. On 24th July, 1992 the victim was hospitalised. On 25th July, 1992, a written complaint was lodged. The victim died in the hospital on 27th July, 1992. 3. The undisputed facts of the case are that the victim, Satkari Senapati and Panchkari Senapati father of the accused, are full brothers. They have an ancestral house, the southern side of which is occupied by the members of the family of the victim Satkari Senapati and the northern side of which is occupied by Panchkari Senapati and the members of his family. Sambhu Nath Senapati was a cousin of Satkari Senapati and Panchkari Senapati. He had a three storeyed building. After the demise of Sambhu, his widow Bhawani sold the three storeyed building by a registered deed to the sons of the victim, Satkari Senapati. A portion of that building since prior to the sale was in possession of the members of the family of Panchakari Senapati. For eviction of Panchkari Senapati and the members of his family from that portion of the three storeyed building, a suit for injunction was filed by the sons of Satkari Senapati. A criminal proceeding under Section 107 of the Code of Criminal Procedure was also started which, as a matter of fact, was pending. On 22nd July, 1992, Panchkari Senapati, his wife and daughter, Sabitri, were alleged to have broken into the house of the complainant party and assaulted the female members of the family. Smt. Kamala Senapati, wife of the victim, was allegedly going to the police station to inform about the invasion conducted by Panchkari Senapati and the members of his family. On 22nd July, 1992, Panchkari Senapati, his wife and daughter, Sabitri, were alleged to have broken into the house of the complainant party and assaulted the female members of the family. Smt. Kamala Senapati, wife of the victim, was allegedly going to the police station to inform about the invasion conducted by Panchkari Senapati and the members of his family. On the way she came across her husband Satkari Senapati. She informed him about the incident and asked him to proceed to the dwelling house hurriedly. Satkari Senapati started moving towards his house. After Smt. Kamala Senapati had proceeded a little, she heard a hue and cry. She looked back and found her husband, Satkari Senapati, being assaulted by the accused, Swapan Kumar Senapati. 4. A written complaint was lodged by one of the sons of the victim on 25th July, 1992, as we have already indicated, relevant portion whereof reads as follows : "At that time my father Sri Satkari Senapati aged of 76 years was coming home from Bud Bud Bazar (Market). My mother me~ my father on the way and informed him about the occurrence and told him to go home immediately. On the way to our house when my father was about to enter at Paschim Bagdipara in Bud Bud village. Swapan Senapati the youngest son of Panchakari Senapati detained my father and threw him in the drain, rode on his chest and started hitting him severely and said "I shall kill the 'Shala' (abusive)" and caused my father bleeding injury." 5. There were four eye witnesses namely P. Ws. 3, 4, 5 and 7. The P. W. 3, Smt. Kamala Bala Senapati, is the widow of the victim. She as already indicated was proceeding to the police station. The P. W. 7, Madhab Bagdi, accompanied her. The P. W. 4, Rupesh Dutta, is a political person. The P. W. 5, Pranab Maji, is a villager. The P. W. 4 and P.W. 5 turned hostile although they had during their examination under Section 161 of the Code of Criminal Procedure told the investigating officer that they had seen the accused Swapan Kr. Senapati assaulting the victim Satkari Senapati. The P. W. 1, Asit Kumar Senapati, the de facto complainant, is not an eye witness nor is the P. W. 2, Nisit Kumar Senapati, an eye witness. They are the sons of the victim. Senapati assaulting the victim Satkari Senapati. The P. W. 1, Asit Kumar Senapati, the de facto complainant, is not an eye witness nor is the P. W. 2, Nisit Kumar Senapati, an eye witness. They are the sons of the victim. Their evidence, if at all, is relevant for the purpose of ascertaining the nature of injury which they found on the person of their father, Satkari Senapati, after the incident was over. The P. W. 6 is Dr. Tapas Pal who examined the victim, Satkari Senapati, soon after the incident. His prescription containing diagnosis made by him is exhibit 2. Exhibit 4 is the treatment sheet prepared in the hospital. The P. W. 9, Dr. Murari Mohan Kumar, was attached at the relevant time to the hospital where the victim was admitted, treated and died. The P. W. 8 is Dr. Bidyut Baran Senapati, the autopsy surgeon. 6. Mr. Tapan Dutta Gupta, learned counsel appearing for the State-appellant assailed the judgment of the learned trial Court by submitting that the learned Trial Judge has ignored material evidence on the record and arrived at a finding which is perverse according to him. He submitted that the case of the prosecution is well proved. The learned Trial Judge, according to him, indulged in fanciful doubt and has also applied incorrect proposition of law for the purpose of recording an order of acquittal. He, therefore, submitted that the judgment and the order under challenge should be reversed and the accused should be punished according to law in order to avoid miscarriage of justice. 7. Mr. Biplab Mitra, learned counsel appearing for the respondent submitted that the evidence of the P.W. 3,Smt. Kamala Bala Senapati. is not believable. She appears to have lodged a complaint narrating the injury suffered by her, but in that complaint there is not a word as regards any injury suffered by the victim. Satkari Senapati. His 2nd submission was that the evidence of the P. W. 6. Dr. Tapas Pal, cannot be believed because he claims to have examined the victim on 22nd July. 1992. at 11.30 a.m. when, according to the evidence of the P. W. 3. Smt. Kamala Bala Senapati, the widow of the victim, he was in the police custody. His third submission was that the evidence of the P. W. 6. Dr. Dr. Tapas Pal, cannot be believed because he claims to have examined the victim on 22nd July. 1992. at 11.30 a.m. when, according to the evidence of the P. W. 3. Smt. Kamala Bala Senapati, the widow of the victim, he was in the police custody. His third submission was that the evidence of the P. W. 6. Dr. Tapas Pal, cannot in any event be relied upon for the simple reason that his evidence was not put to the accused. Swapan Kumar Senapati, during his examination under Section 313 of the Code of Criminal Procedure. The fourth submission of Mr. Mitra was that neither Dr. Kumar nor the autopsy surgeon, the P. W. 8. Dr. Bidyut Baran Senapati, deposed as regards any definite opinion held by them that the death was caused by the alleged assault. Lastly, Mr. Mitra commented upon the fact that the incident, if any, took place on 22nd July, 1992, but the written complaint was lodged on 25th July, 1992. He submitted that this inordinate delay in lodging the written complaint casts a serious doubt as regards the truthfulness of the case of the prosecution. Mr. Mitra relied on the following judgments for the proposition that in dealing with an order of acquittal. High Court shall not interfere if the view taken by the learned Trial Judge appears to be a reasonable view in the facts and circumstances of the case. 8. In the case of State of Goa v. Sanjay Thakran and Another reported in (2007) 2 SCC (Cri) 162 (Paragraph 16) : (2007 AIR SCW 2226) it was held as follows: "From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of Appeal would not take the view which would upset the judgment delivered by the Court below. Merely because two views are possible, the Court of Appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the view arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with." 9. In the case of Harijana Thirupala and others v. Public Prosecutor, High Court of A. P., Hyderabad reported in 2002 SCC (Cri) 1370: (2002 Cri LJ 3751), paragraph 12, it was held as follows: "Doubtless the High Court in appeal either against an order of acquittal or conviction as a Court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial Court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial Court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise, the judgment will suffer from serious infirmity." 10. In the case of Kashiram and others v. State of M. P. reported in 2002 SCC (Cri) 68, paragraph 21 : ( AIR 2001 SC 2902 Para 21), it was held as follows: "We find the judgment of the High Court suffering from several infirmities. The High Court was dealing with an appeal against acquittal. In the case of Kashiram and others v. State of M. P. reported in 2002 SCC (Cri) 68, paragraph 21 : ( AIR 2001 SC 2902 Para 21), it was held as follows: "We find the judgment of the High Court suffering from several infirmities. The High Court was dealing with an appeal against acquittal. Though the High Court while hearing an appeal against an acquittal has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial Court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is - if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sit-ting as a trial Court its view would have been one of recording a conviction. It follows as a necessary corollary, as has been held by this Court in Chandu v. State of Maharashtra it is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the that Court to acquit the accused and then to disclose those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court ." 11. In the case of Jaisingh and others v.. State of Karnataka reported in (2007) 3 SCC (Cri) 692, paragraph 4 : (2007 Cri LJ 2434), it was held as follows: "We have considered the arguments advanced by the learned counsel. From a perusal of the judgment in Chandrappa case (2007 Cri LJ 2136) we observe that though the powers of the High Court in an acquittal appeal are not Circumscribed and are clearly unfettered, the situation under which they should be resorted to have been spelt out. The broad principle is that the presumption of innocence is strengthened if an accused, is acquitted by the trial Court and that a reversal of the trial Court's judgment should be made in cases where the view taken was not possible on the evidence or perverse with• the broad understanding that if two views, were possible the one taken by the trial Court in favour of the accused should be retained. " 12. In the case of State of U. P. v. Jai Prakash reported in (2007) 3 SCC (Cri) 450, paragraph 9 : (2007 Cri LJ 3534), it was held as follows : "There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally the order of acquittal shall not be interfered with because the presumption of innocence of the' accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on' the evidence adduced in the case, one pointing to the guilt of the accused and the other, to his innocence, the view which is favour-able to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored a duty is cast upon the appellate Court to reappreciate the evidence where the accused ,has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh v. State of M. P.) (2002 Cri LJ 2024). The principle to be followed by the appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 Cri LJ 1783), Ramesh Babulal Doshi v. State of Gujarat (1996 Cri LJ 2867), Jaswant Singh v. State of Haryana (2000 Cri LJ 2212), Raj Kishore Jha v. State of Bihar (2003 Cri LJ 5040), State of Punjab v. Karnail Singh (2003. Cri LJ 3892) and State of Punjab v. Phola Singh (2003 Cri LJ 5010)." 13. Cri LJ 3892) and State of Punjab v. Phola Singh (2003 Cri LJ 5010)." 13. He also cited the judgment in the case of State of Rajasthan v. Bhanwar Singh reported in 2005 SCC (Cri) 73 : (2004 Cri LJ 4886) for the proposition that unexplained delay in lodging the F. I. R. cast a serious doubt on the truthfulness of the case of the proposition. He relied or paragraph 6 wherein the following view \vas expressed : "6. We find that the High Court has carefully analyzed the factual position. Though, individually some of the, circumstances may not have affected veracity of the prosecution version, the combined effect of the infirmities noticed by the High Court is sufficient to show that the prosecution case has not been established. The presence of P. Ws. 3, 4 and 8 at the alleged spot of incident has been rightly considered doubtful in view of the categorical statement of P.W. 5, the widow that she sent for these persons to go and find the body of her husband. It is quite unnatural that P. Ws. 3, 4,and 8 remained silent after witnessing the assaults. They have not given any explanation as to what they did after witnessing the assault on the deceased. Additionally, the unexplained delay of more than one day in lodging the FIR casts serious doubt on the truthfulness of the prosecution version. The mere delay in lodging the FIR may nor prove fatal in all cases. But on the circumstances of the present case, certainly, it is one of the factors, which corrodes credibility of the prosecution version. Final1y, the medical evidence was at total variance with the ocular evidence. Though ocular evidence has to be given importance over medical evidence, where the medical evidence totally improbabilises the ocular version that can be taken to be a factor to affect credibility of the prosecution version. The view taken by the High Court is a possible view. The appeal being one against acquittal, we do not consider this to be a fit case where any interference is cal1ed for. The appeal fails and is dismissed. 14. He also relied on a judgment in the case of Kanhai Mishra v. State of Bihar reported in 2001 SCC (Cri) 537 : (2001 Cri LJ 1259) for the same proposition. 15. We already have noticed a summary of the case. The appeal fails and is dismissed. 14. He also relied on a judgment in the case of Kanhai Mishra v. State of Bihar reported in 2001 SCC (Cri) 537 : (2001 Cri LJ 1259) for the same proposition. 15. We already have noticed a summary of the case. Before we discuss the reasoning advanced by learned Trial Judge and deal with the points urged by Mr. Mitra, we would like to notice the evidence on record in support of the aforesaid case of the prosecution. 16. P. W. 3 Smt. Kamala Bala Senapati, widow of the victim, who is an eye-witness of the incident. deposed as fol1ows : "About 5 years ago on 6th Shravan at about 11 a.m. Sabitri daughter of Panchkori making her forcible entry in my house damaged the household articles and thereafter Panchkori Senapati fol1owing her entered into my house and caught hold of my hair. Thereafter Ashoka. w/o. Panchkori and Menace - daughter of Panchkori started assaulting me. Thereafter Swapan Senapati (Identified) forcibly confined the wife of my sons namely Monika, Prateema and Sandhya in their bid to rescue me from the clutches of the miscreants. I then being accompanied by one Madhav Bagdi working in my house wept out for P. S. and on the way to P. S. at Bagdi Para I came across my husband who was also on his way to the house, where I narrated the incident to him and told him to go to the house and I proceeded towards the P. S. A few steps thereafter I looked back and found that the accused Swapan making my husband lie/on the drain sat on his chest and holding his hair repeatedly hit his head against the ground. I made futile attempt to rescue my husband from the clutches of accused Swapan. On my shrieking accused Swap an hit my husband on his face with a piece of stone and thereafter some persons in the locality like Rupesh Dutta and others collected there. I, thereafter went to the P. S. in a rickshaw along with my injured husband. In the P. S. myself along with my husband, and, Panchkori, his wife Ashoka and his daughter Sabitri were detained by the police. " 17. I, thereafter went to the P. S. in a rickshaw along with my injured husband. In the P. S. myself along with my husband, and, Panchkori, his wife Ashoka and his daughter Sabitri were detained by the police. " 17. P. W. 7 Madhav Bagdi referred to by the P. W. 3 Kamala Bala Senapati, deposed as follows : "I knew Satkori who died about 5 years ago. At about 10/11 a.m. about'5 years ago Kamala Senapati, w/o. Satkori Senapati came to my house and requested me to accompany her to the P. S. When we were proceeding towards the P. S. we came across Satkori Senapati on the way at Bud Bud more. Kamala Senapati told him to proceed ahead towards the home as she was proceeding towards the P. S. A few while thereafter hearing some sound of fall when we looked back we found Swapan Senapati sitting on the chest of Satkori was hitting him with a piece of stone on his face as well as caught hold of his hair. On my screaming some persons came in rescue and found blood oozing out from his nose. I, thereafter sent Satkori and his wife Kamala to the P. S. in a rickshaw and coming back to the home informed the matter to the inmates of Satkori. Swapan Senapati is present in Court today (identified)." 18. Rupesh Dutta, referred to in the deposition of P. W. 3, is P. W. 4. He turned hostile. However, he deposed to have rushed to that place and found Satkori Senapati lying in a drain with bleeding from his nose. "I thereafter lifting him up, poured water on his head and took him to the care of his wife standing in his side, advised her to treat her husband by doctor." 19. Therefore, the presence of the widow (P. W. 3) at the place of occurrence is confirmed even by the evidence of the hostile witness, P. W. 4. The injury suffered by the victim and the place of occurrence deposed by the P. Ws. 3 and 7 are also corroborated. The name of the miscreant deposed to by the P. W. 3 is corroborated by the evidence of the P. W. 7. 20. The injury suffered by the victim and the place of occurrence deposed by the P. Ws. 3 and 7 are also corroborated. The name of the miscreant deposed to by the P. W. 3 is corroborated by the evidence of the P. W. 7. 20. P. W. 1, the de facto complainant, Asit Kumar Senapati, deposed in his cross-examination as follows : "I noticed the injury on my father's forehead (Chamra Fata) I did not notice any injury on the chest of my father. (Volunteers : Besides the injury on the forehead I noticed injury on the nose cheek etc. of my father (Chamra Fata) with a piece of stone)." 21. P. W. 2 Nisit Kumar Senapati, another son of the victim, deposed as follows: "My father was treated by one Dr. Tapas Paul and thereafter at Pursha P. H. C. and when his condition was gradually deteriorated he was again shifted to D. S. P. hospital. My father succumbed to the injuries on 27th at D. S. P. Hospital." 22. P. W. 5, Pranab Maji was hostile from the beginning. The victim was examined by the P. W. 6, Dr. Tapas Pal. at 11.30 a.m. on 22nd July, 1992, and his prescription is Exhibit 2 as already indicated. From the prescription the following diagnosis appears: "Multiple injuries on the face, bleeding from left nose, bleeding from injury on nose, swelling of the forehead, lateral wall of the left orbit." 23. We have already seen from the evidence of the sons of the victim that the latter was admitted to D. S. P. Hospital. The bed-head ticket of the D. S. P. Hospital is Exhibit 4 which contains the following diagnosis : "25th July, 1992, unconscious, pupil's unequal < R ...................... sympton complex may be either due to head injury or cerebral/which is difficult to differentiate. But as the magnificent is almost same it is better patient be treated as case of head injury." 24. The P. W. 9, Dr. Murari Mohan Kumar, attached at that time to the D. S. P. Hospital proved Exhibit 4. 25. P. W. 8 Dr. Senapati, Autopsy Surgeon, found the following injury :- "Before dissection I found bi-lateral periorbital Haematoma. No other external injury was found." 26. The P. W. 9, Dr. Murari Mohan Kumar, attached at that time to the D. S. P. Hospital proved Exhibit 4. 25. P. W. 8 Dr. Senapati, Autopsy Surgeon, found the following injury :- "Before dissection I found bi-lateral periorbital Haematoma. No other external injury was found." 26. According to him, the cause of death was as follows :- "The cause of death in my opinion was due to intra cranial, extra cerebral haemorrhage over right parieto temporal region which was antimortem in nature. This is the carbon copy of the P. M. report prepared and signed by me. It is prepared in carbon process with the original in one impression. (Ext. 3) - Intra carnial haemorrhage might be caused as in this case due to blunt injury over the scalp." 27. The bloodstained wearing apparels of the deceased were seized vide seizure list marked Exhibit 5. 28. From the evidence discussed above, we are firmly of the view that the evidence of the eye-witnesses namely P. Ws. 3 and 7 as regards the injury inflicted upon the victim is corroborated by the evidence of the P. W. 4, by the evidence of the P. W. 1 who in his cross-examination has deposed as to the injuries found by him on the person of his father, by the documentary evidence being Exhibit 2 and Exhibit 4 which go to show that the victim was severely assaulted. 29. P. W. 6 Dr. Pal, the author of Exhibit 2, deposed that he found following injuries:- "(1) Multiple injuries on face. (2) Bleeding from left nose (3) Bleeding from the injury point on the nose. (4) Swelling on the forehead and lateral wall of the left orbit;" This has been corroborated by the evidence of the P. W. 9 who deposed as follows:- "On that day I examined one patient namely Satkori Senapati who was admitted to surgical ward on 24-7-92 with diagnosis of head injury." The patient was reported to me that the possibility of cerebral attack. On examination the injury could be due to (illegible) head injury or cerebral injury which could not be differentiate (illegible). I opined that the (tom) could be treated for head injury." 30. The P. W. 8. Autopsy Surgeon found Haematoma before dissection of the periorbital region. 31. On examination the injury could be due to (illegible) head injury or cerebral injury which could not be differentiate (illegible). I opined that the (tom) could be treated for head injury." 30. The P. W. 8. Autopsy Surgeon found Haematoma before dissection of the periorbital region. 31. Lastly, the bloodstained wearing apparels of the victim seized by the police also lend support to the case of the prosecution. 32. It is in this background that we have to examine the submission of Mr. Mitra. He drew our attention to the following portion of the evidence of the P. W. 3 in her cross-examination. "I lodged complaint in writing to the police stating the assault on me at the instance of Panchkori, but I did not show my swelling injury to the police." 33. Mr. Mitra, submitted that the P. W. 3 lodged a written complaint concerning the injury suffered by her but she did not utter a word as regards injury allegedly suffered by her husband. 34. There is only one written complaint on the record lodged by the P. W. I, the son of the P. W. 3. When the P. W. 3 referred to a complaint lodged by her, the minimum that the learned cross-examining counsel should have done was to suggest that the FIR lodged by the P. W. 3 had been suppressed. The fact that no such suggestion was given goes to show that the learned cross examining counsel believed that she was or she must have referred to the statement which she may have made to the police concerning the genesis of the incident. The invader Panchkuri lodged a complaint with regard to the first incident on the basis of which both the victim in the present case and his wife the P. W. 3 were detained by the police in the custody. This would also appear from the suggestion given on behalf of the defence to the P. W. 3 :- "It is a fact that on the complaint of Panchkori, his wife and daughter that they were assaulted by us in their bid to evict them from the portion of that 3 storeyed building, the police accordingly detained us in the P. S." 35. In the absence of the alleged written complaint allegedly lodged by the P. W. 3 it is not possible to speculate about the contents thereof. In the absence of the alleged written complaint allegedly lodged by the P. W. 3 it is not possible to speculate about the contents thereof. This submission is therefore rejected. 36. The second submission of Mr. Mitra that the evidence of the P. W. 6, Dr. Tapas Pal. cannot be believed because he claims to have examined the victim on 22nd July, 1992, at 11.30 a.m. when according to the evidence of the P. W. 3. Smt. Kamala Bala Senapati, the widow and the victim were in the police custody is equally without any merit. While it is true that the victim and his wife Kamala, P. W. 3, were in custody but it is also true that the victim Satkori was sent to P. W. 6, Dr. Pal by the police itself which will be evident from the cross-examination of the P. W. 6 which is as follows :- "So far I remember the patient Satkori Senapati was brought before me on 22-7-92 at about 11.30 a.m. The patient told me that he was sent by the concerned P. S. to me." 37. Mr. Mitra submitted that the P.W. 3 has deposed that they were released on bail from the police station only in the evening. He is right in his submission that the victim and his wife Kamala, P. W. 3, were bailed out from the police station by the P. W. 4 but that does not militate against the fact that the police sent the victim to the P. W. 6 for treatment because he was severely bleeding. We, therefore, are unable to disbelieve the evidence of the P. W. 6 which consist of both oral and documentary evidence. The contemporaneously prepared document "ext. 2" discloses injury found on the person of the victim which lends further assurance to the Court. The signature of the P. W. 6 appearing in Exhibit 2 was marked Exhibit A on behalf of the defence. There is, therefore, no reason whatsoever to view the evidence of the P. W. 6 with any amount of suspicion. 38. The third submission advanced by Mr. Mitra that the evidence of the P. W. 6 cannot be relied upon because the same was not put to the accused during his examination under Section 313 of the Cr. P. C. has also not impressed us. No such point was urged before the Trial Court. 38. The third submission advanced by Mr. Mitra that the evidence of the P. W. 6 cannot be relied upon because the same was not put to the accused during his examination under Section 313 of the Cr. P. C. has also not impressed us. No such point was urged before the Trial Court. We have specifically asked Mr. Mitra what prejudice if any was suffered by his client to which he answered that the accused had no scope to explain. We are not satisfied with this answer. All the circumstances put to the accused under Section 313 of the Cr. P. C. were merely denied. Therefore, this circumstance arising out of the evidence of the P. W. 6 would have been explained is not believable. This technical defence for the purpose of avoiding the evidence of the P. W. 6 in our view cannot be allowed to succeed. Reference in this regard may be made to a judgment in the case of Parasuram Pandey v. State of Bihar reported in AIR 2004 SC 5068 : (2004 Cri LJ 4978) wherein an identical view was taken. "It is humbly submitted by the learned counsel for the accused/appellants that the statement under section 313. Cr. P. C. of the accused persons have been recorded in a most cursory, casual and perfunctory manner by the Sessions Court. It is urged that this is a normal practice followed in the Court in the State. The manner in which the trial Court recorded the statement under Section 313. Cr. P. C. of the accused persons, is not in accordance with law, and therefore, accused/appellants are entitled for the benefit as they have not been provided with sufficient opportunity to explain the circumstances appearing in evidence against them. We have perused the statement under Section 313. Cr. P. C. and the question formulated by the trial Court in the present case and we may say that it is far from satisfactory. This Court time and again has laid down that it is obligatory on the part of the trial Court to examine the accused for the purpose of enabling the accused personally to explain any circumstance appearing in evidence against him. If such opportunity is not afforded, the incriminating piece of evidence available in the prosecution evidence against the accused cannot be relied upon for the purpose of recording the conviction of the accused person. If such opportunity is not afforded, the incriminating piece of evidence available in the prosecution evidence against the accused cannot be relied upon for the purpose of recording the conviction of the accused person. It is imperative under Section 313. Cr, P. C. of the accused persons so as to explain any incriminating circumstance proved by the prosecution. The duty cast on the Court cannot be taken lightly. However, we find that no argument has been advanced by the counsel for the appellants in the trial Court or before the High Court on the basis of improper recording of the statement under Section 313 of the Cr. P. C. In the present case, the counsel for the accused/ appellant could not point out to us any prejudice being caused to the accused/appellants on account of the irregular, imperfect statement recorded under Section 313 of the Cr. P. C. That being the case, the accused are not entitled for any benefit for the lacuna in recording the statement of the accused under Section 313 of the Cr. P. C. 39. Even otherwise the evidence of P. W. 6 merely corroborates the evidence of the other witnesses that the victim was severely injured. This by itself is not an incriminating piece of evidence. 40. The fourth submission advanced by Mr. Mitra was that neither Dr. Kumar nor the autopsy surgeon the P. W. 8 Dr. Bidyut Baran Senapati, deposed about any definite opinion held by them that the death was caused by the alleged assault. He drew our attention to the following evidence of P. W. 9. "That the death a natural one that possibility could not be ruled out.'" 41. He also drew our attention to the following evidence of P. W. 8 :- "It is not possible for me to spell out specifically as to the nature of the death of the patient was natural, suicidal, homicidal or accidental." 42. From the evidence of the P. W. 9 we can only read that after this kind of an injury death could have been a natural consequence. This was also deposed to by the P. W. 8, the autopsy surgeon :- "The cause of death in my opinion was due to intra cranial, extra cerebral haemorrhage over right parieto temporal region which was anti mortem in nature. This was also deposed to by the P. W. 8, the autopsy surgeon :- "The cause of death in my opinion was due to intra cranial, extra cerebral haemorrhage over right parieto temporal region which was anti mortem in nature. This is the carbon copy of the P. M. Report prepared and signed by me. It is prepared in carbon process with the original in one impression. (Ext. 3). Intra carnial haemorrhage might be caused as in this case due to blunt injury over the scalp." 43. Therefore what we can safely infer from the evidence of the P. W. 8 is that the death was the effect of the injury. The mere fact that the P. W. 8 in his cross-examination refused to give any opinion as regards the cause of death cannot wash out the evidence as regards the injury found on the person of the deceased by the P. W. 8. The injury according to him could have been caused by a blunt substance. We have evidence of eyewitnesses to establish that the head of the victim was dashed and also hit by a stone by the accused. 44. The last submission of Mr. Mitra that the written complaint was lodged after inordinate delay has also not impressed us. On 22nd July, 1992 the incident took place at about 11.00 a.m. in the morning. Till the evening the victim and his wife the P. W. 3 were in police custody. The ailing victim was bailed out in the evening of 22nd July, 1992 and taken home. On that day, nobody may have thought of lodging the written complaint because the injury was inflicted by no other than the nephew of the victim. Both the victim and the accused were residing in the same ancestral house. On 22nd July 1992 no one anticipated that the result of the assault was going to be catastrophic. It is only on the 24th July, 1992 that the condition of the victim deteriorated and he was hospitalized. The son of the victim thereafter lodged the written complaint on 25th July, 1992 in the morning. Mr. Mitra has not been able to bring to our notice any circumstance which may suggest that the accused may have been falsely implicated. It is only on the 24th July, 1992 that the condition of the victim deteriorated and he was hospitalized. The son of the victim thereafter lodged the written complaint on 25th July, 1992 in the morning. Mr. Mitra has not been able to bring to our notice any circumstance which may suggest that the accused may have been falsely implicated. The incident in question was preceded by another incident on the same day in the dwelling house of the victim in which the family members of the victim, the female members in particular were assaulted by the parents and sister of the accused. With regard to that incident the father of the accused had lodged a complain t in pursuance whereof the injured victim and his wife were detained until the evening. We are, therefore, of the view that the delay simpliciter is not of much significance particularly when the case of the prosecution is well established. The same view was taken in the case of State of Rajasthan v. Bhanwar Singh (2004 Cri LJ 4886) (supra) cited by Mr. Mitra himself. Delay in lodging the FIR in the present case has also been well explained. 45. Rest of the judgments cited by Mr. Mitra noticed above do not really lend any assistance to the respondent because the learned Trial Judge did, in fact, ignore the material evidence on record which we shall presently demonstrate. 46. The first reason advanced by the learned Trial Judge in recording the finding of acquittal is as follows :- "Here, we find that the evidence of P. W. 3 and 7 contradicted each other regarding the manner in which Satkori was assaulted by Swapan. P. W. 7 never stated that Satkori the deceased was made to lie on a drain. Apart from that it was stated by P. W. 7 that Swapan Senapati was hitting Satkori with a piece of stone on his face sitting on his chest, whereas, P. W. 3 has stated that by sitting on the chest Swapan repeatedly hit the head of Satkori on the ground by holding his hair. I am of the view that such discrepancy should not have taken place particularly when both P. W. 3 and P. W. 7 saw the incident from the very beginning. I am of the view that such discrepancy should not have taken place particularly when both P. W. 3 and P. W. 7 saw the incident from the very beginning. Moreover, P. W. 3 did not state to the I. O. that accused Swap an hit her husband repeatedly by cathing hold of his hair or hit him with a piece of stone. So, this discrepancy in between the statements of P. W. 3 and P. W. 7 has jolted the prosecution case to a considerable extent. It is also worthwhile to mention here that in the F. I. R. (Ext. 1) there is no whisper of using a piece of stone as a substance of hitting the victim on his face." 47. The learned Trial Judge has misssed the fact that the P.W. 3 also deposed about hitting the victim with the stone which is as follows :- "On my shrieking accused Swapan hit my husband on his face with a piece of stone." 48. There is thus no discrepancy between the evidence of the P. Ws. 3 and 7. 49. In any event, minor discrepancies not touching the core of the matter are bound to be there in the evidence of the truthful witnesses and the Apex Court has been repeatedly warning that for minor discrepancies the case of the prosecution cannot be thrown over board. Reference in this regard may be made to the judgment in the case Rammi alias Rameshwar v. State of Madhya Pradesh with Bhura alias Sajjan Kumar v. State of Madhya Pradesh reported in AIR 1999 SC 3544 : (1999 Cri LJ 4561). "When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny." 50. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny." 50. In the written complaint it has, in fact, been stated that the accused-Swapan severely hit the victim. Mere omission to name the stone does not nullify the statement made in the written complaint and, therefore, the learned Trial Judge was wrong in treating this as a serious lacuna in the case of the prosecution. 51. The second reasoning advanced by the learned Trial Judge is as follows :- "This P. W. 9 (has) also could not specifically depose whether the patient sustained head injury or cerebral injury." 52. 'The overwhelming evidence before us discussed above is that the victim was severely assaulted by the accused Swapan. The evidence of the P. W. 9 is that after examining the patient he decided to treat him for the head injury. Any other possibility is, in our view, wholly in the region of a hypothesis. Ext. 2 contemporaneously recorded' couple with evidence of P. W. 6 who had the first occasion to treat the victim leaves no manner of doubt that the victim was severely assaulted. It was not proper for the learned Trial .Judge to consider a stray sentence from the deposition of one of the witnesses leaving aside plethora of evidence on the subject. 53. The next reasoning advanced by the learned Trial Judge is as follows ;- "In fact, this P. W. 8 did not support the case of the prosecution by concluding his cross-examination by stating that he took all the facts and circumstances into consideration, but, it was not possible for him to spell out specifically as to whether the death of the patient was natural, suicidal, homicidal or accidental in nature." 54. P. W. 8. Autopsy Surgeon, has in his post-mortem report marked Exhibit 3 stated that the "cause of death in my, opinion was due to intra cranial extra cerebral haemmrhoage over right parieto temporal region which was anti mortem in nature." This opinion was formed by the Doctor on the day when he conducted the post-mortem examination which is also the best evidence discernible from the contemporaneous document. In his cross-examination P. W. 8 may have talked about various other possibilities. In his cross-examination P. W. 8 may have talked about various other possibilities. He may have chosen to drift in the sea of uncertainties but the enquiry here today is whether the injury was inflicted by the accused, if so, whether that injury is the proximate cause of death. These two questions are bound to be answered in the affirmative on the basis of the evidence already discussed and the learned Trial Judge erred in vacillating. In discarding the evidence of the P. W. 6 the learned Trial Judge advanced the following reasoning :- "So, from the evidence of P. W. 6 it can be inferred easily that in order to support the prosecution case he has noted down some injuries upon the prescription issued by him in an inconclusive and hasty manner and without following the norms of Medical ethics. Therefore. prosecution case does not derive any benefit from the evidence of P. W. 6 Dr. Tapas Paul." 55. The reasoning adopted by the learned trial Judge is altogether bad. On 22nd July, 1992 when the victim was first examined by the P. W. 6 neither the P. W. 6, the doctor himself, nor the members of family of the victim had any clue that the victim was likely to die. The question of noting down anything in the prescription for the purpose of supporting the case of the prosecution did not arise because at that time even the FIR had not been lodged. This reasoning adopted by the learned Trial Judge shows that he started appreciating the evidence with a desire to find fault which is not expected from a court of law. 56. The learned Trial Judge in disbelieving the evidence of the P. W. 6 also opined as follows :- "I find that defying all the medical norms this P. W. 6 without referring him to the government hospital examined him. It appears that this doctor P. W. 6 is inclined to support the prosecution case as he happens to be the house physician of the complainant party. although P. W. 6 denied to be their house physician." 57. The learned Trial Judge obviously was wrong in entertaining this view. Reference in this regard may be made to the judgment in the case Pandit Parmanand Katara v. Union of India and others reported in 1989 (4) SCC page 286: (1990 Cri LJ 671). although P. W. 6 denied to be their house physician." 57. The learned Trial Judge obviously was wrong in entertaining this view. Reference in this regard may be made to the judgment in the case Pandit Parmanand Katara v. Union of India and others reported in 1989 (4) SCC page 286: (1990 Cri LJ 671). Their Lordships in paragraph 8 of the judgment laid down the following law :- "Para 8 : Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions have emphasized and reiterated with gradually increasing emphasis that position. A doctor at the government hospital positioned to meet this State obligation is, therefore, dutybound to extend medical assistance for preserving life. Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount. laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must. therefore. give way. On this basis, we have not issued notices to the States and Union territories for affording them an opportunity of being heard before we accepted the statement made in the affidavit of the Union of India that there is no impediment in the law. The matter is extremely urgent and in our view, brooks no delay to remind every doctor of his total obligation and assure him of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others. We must make it clear that zonal regulations and classifications cannot also operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules the victim has to be sent elsewhere or how the police shall be contacted, the guideline indicated in the 1985 decision of the Committee, as extracted above, is to become operative. We order accordingly." 58. We order accordingly." 58. The next reasoning advanced by the learned Trial Court is that "It would be quite natural on the part of P. W. 3 to spell out to Rupesh Dutta, P. W. 4, regarding the manner in which her husband was assaulted and also by whom but, we have already found that P. W. 4 Rupesh Dutta did not utter any single word to that effect." 59. The learned Trial Judge has ignored the fact that Rupesh (P. W. 4) turned hostile. He was cross-examined with the leave of Court and he was suggested in cross-examination by the prosecution that he had told the investigating officer during examination under Section 161 of the Cr. P. C. that "I found accused Swap an drubing Satkori." Therefore, the criticism of the learned Trial Judge that the P. W. 4 did not talk about assault by the accused is altogether unfounded. 60. The learned Trial Judge further opined as regards (P. W. 4, Rupesh) that "It is expected that a person who had stood as surety on behalf of the deceased and his wife should support the prosecution case, but this key witness i.e. P. W. 4 in stead of bolstering the case of prosecution has done more harm than good. Thus, once again I have every reasons to hold that what was told by P. W. 3 and P. W. 7 regarding the manner in which the incident took place is hard to believe." 61. The learned Trial Judge ignored the fact that the P. W. 4 chose to become hostile. During his examination under Section 161 of the Cr. P. C. he had stated about the role played by the accused. The learned Trial Judge chose to disbelieve the evidence of the eye-witnesses because the hostile witness did not support them is surprising to the say the least. 62. As regards the delay in lodging the written complaint, the learned Trial Judge opined as follows :- "Moreover, the concerned officer is bound to accept any complaint petition as soon as the same is submitted to them." 63. The learned Trial Judge ignored the fact that the victim, who had severely been assaulted which ultimately led to his death, in his ailing condition was kept confined in the police lock up until the evening from the forenoon on 22nd July, 1992 when the P. W. 4 bailed him out. The learned Trial Judge ignored the fact that the victim, who had severely been assaulted which ultimately led to his death, in his ailing condition was kept confined in the police lock up until the evening from the forenoon on 22nd July, 1992 when the P. W. 4 bailed him out. This goes to show the way the police behaved with the complainant party. The learned Trial Judge has referred to an ideal situation whereas he was expected to decide the case on the basis of evidence before him and not to draw upon the imaginary ideal situation. 64. The learned Trial Judge has also opined that there was no reason why the written complaint should have been lodged after three days. We already have answered this question and need not reiterate the same. 65. Lastly, the learned Trial Judge relied on the fact that the bloodstained wearing apparels of the victim seized by the police were not produced in Court. That in our view goes to show negligent handling of the case by the investigating agency and that cannot be a reason to throw overboard the truthful case of the prosecution. We need not cite an authority because this is too well settled a proposition of law. 66. We have thus dealt with all the points advanced by the learned Counsel as also the reasoning advanced by the learned Trial Judge. We are of the considered opinion that the order of acquittal is clearly wrong and has occasioned miscarriage of justice. In the case of State of U. P. v. Jai Prakash (2007 Cri LJ 3534) (supra) cited by Mr. Mitra himself it was held that "A miscarriage of justice, which may arise from acquittal of the guilty, is no less than from the conviction of an innocent." 67. We are of the view that the injury inflicted by the accused Swap an was with the knowledge that the same was likely to cause death. We at the same time are also of the view that he may not have intended to cause death of the victim but he certainly knew that the injury inflicted by him was likely to cause death regard being had to the fact that the victim in this case was an old person aged about 76 years. The victim was also the elder brother of the father of the accused. 68. The victim was also the elder brother of the father of the accused. 68. We accordingly convict the respondent, Swapan Kumar Senapati. under Section 304. Part II of the Indian Penal Code. 69. We have requested Mr. Mitra, the learned Counsel appearing for the respondent to make his submission on the question of punishment. He submitted that the punishment should be restricted to the imprisonment already undergone. We are unable to agree. Considering the gravity of the matter and the fact that the convict could indulge in this kind of outrage to the elder brother of his own father, we do not think that the submission of Mr. Mitra can be accepted. The convict is sentenced to seven years rigorous imprisonment. He shall get the benefit under Section 428 of the Cr. P. C. Let copies of this judgment be sent to the Hon'ble Chief Justice and to the concerned learned Trial Judge. 70. The respondent, Swapan Kumar Senapati, is now on bail. His bail bond is cancelled. He is directed to surrender to the bail bond furnished by him. 71. The learned Trial Court is directed to take the respondent in custody at once so that he may serve out the sentence inflicted by this order. 72. The appeal is, thus, allowed. 73. The Criminal Section of this Court is directed to send the lower Court records and a copy of this judgment to the concerned learned Trial Court for information and necessary action. 74. Let urgent xerox certified copy of this judgment, if applied for, be delivered to the learned counsel, for the parties, upon compliance of all usual formalities. KISHORE KUMAR PRASAD. J. :- 75. I agree. Appeal allowed.