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2009 DIGILAW 530 (CAL)

Nikhil Ghosh v. STATE OF WEST BENGAL

2009-07-21

ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE

body2009
Judgment : KALIDAS MUKHERJEE, J. (1) This appeal is directed against the judgment of conviction and sentence recorded by learned Additional Sessions Judge, Second Court, Berhampur, Murshidabad in Sessions Trial No. 489 of 2001 sentencing thereby the appellant to suffer imprisonment for life and to pay a fine of Rs.5,000/-in default to suffer further rigorous imprisonment for six months. (2) The case of the prosecution, in short, is that on January 21st, 1999 at about 3.30 p.m. the accused persons attacked Ashutosh Ghosh, the husband of the defactocomplainant, Ashish Ghosh and Biswanath Ghosh. The accused Nikhil Ghosh dealt blow with batali on Ashutosh in the waist. As a result he fell down on the ground with bleeding injury. Ashish Ghosh came to his rescue and the accused Nikhil Ghosh assaulted him with batali in the abdomen. Accused Nemai Ghosh assaulted Ashish Ghosh with Bhojali. When Biswanath Ghosh came to rescue, accused Nikhil Ghosh dealt blow with batali in the abdomen of Biswanath. As a result, Biswanath succumbed to the injuries immediately. (3) Upon receiving the written complaint, the Jalangi P.S. Case No. 16/99 dated 22.01.99 was registered under Sections 302/326/120B/ 34 Indian Penal Code. Upon completion of investigation,charge-sheet was submitted. (4) Charge was framed by the learned trial Court under Section 304 Part-l or Part-ll read with Section 34 of the Indian Penal Code and Section 307/34 Indian Penal Code. (5) Upon consideration of the materials-on-record, the learned trial Judge convicted accused Nikhil Ghosh under Section 304 Part-l Indian Penal Code and sentenced him to suffer Rigorous Imprisonment for life and to pay a fine of Rs.5,000/-, in default to suffer further Rigorous Imprisonment for six months. The learned Judge however acquitted other accused persons of all the charges. The learned Judge while holding the appellant guilty observed that there was no infirmity in the evidence of the P.Ws and that it was sufficiently proved that Nikhil stabbed Biswanath with a batali. Learned trial Judge further held that Nikhil was the sole assailant and was responsible for causing the death of Biswanath. (6) Mr. Bhattacharya, learned Counsel appearing on behalf the appellant submits that over the incident of tussle amongst the cattle, there was free-fight between the parties. Mr.Bhattacharya submits that appellant Nikhil also sustained injuries and police reached the P.O. and stayed at the village during the night, but, the FIR was lodged oh the next day. (6) Mr. Bhattacharya, learned Counsel appearing on behalf the appellant submits that over the incident of tussle amongst the cattle, there was free-fight between the parties. Mr.Bhattacharya submits that appellant Nikhil also sustained injuries and police reached the P.O. and stayed at the village during the night, but, the FIR was lodged oh the next day. It is submitted that the surathal was held prior to the lodging of the FIR. It is submitted that the appellant informed the P.S. earlier. (7) Mr. Bhattacharya further contends that the sentence as recorded by the learned trial Judge is excessive and having regard to the fact that the appellant was engaged in cutting date-palm tree, there was no intention to kill, and the sentence of imprisonment as recorded by the learned trial Judge may be reduced. (8) Mr. Chatterjee, appearing on behalf of the prosecution submits that there was previous enmity between the parties and the appellant dealt three blows with the deadly weapon, that is, batali which is sufficient to prove that there was intention to cause death. Mr. Chatterjee submits that the learned trial Judge was justified in recording the conviction and sentence and there is no ground to interfere with the findings recorded by the learned Judge. (9) In this case the prosecution has examined as many as nine witnesses including Autopsy Surgeon and the I.O. (10) P.W.1 Shefali Ghosh is the defacto-complainant. It is in her evidence that on the date of incident at about 3.30 p.m. there was tussle between the two cows and an altercation followed between her husband and Nemai Ghosh. It is in her evidence that at the time of the incident Nikhil dealt blow with batali (sharp cutting weapon) on the right thigh of her husband; Biswanath Ghosh was coming towards her house and then Nikhil stabbed him three times on his chest. In the cross-examination she has stated that police came to the village and held inquest over the dead body and the FIR was written. The F.I.R. (Exibit-1) also shows that the defacto-complainant signed the same on 21.01.1999. (11) P.W.2, P.W.3 and P.W.4 are the witnesses to the inquest. (12) P.W.5 is the wife of the deceased Biswanath Ghosh. In the cross-examination she has stated that police came to the village and held inquest over the dead body and the FIR was written. The F.I.R. (Exibit-1) also shows that the defacto-complainant signed the same on 21.01.1999. (11) P.W.2, P.W.3 and P.W.4 are the witnesses to the inquest. (12) P.W.5 is the wife of the deceased Biswanath Ghosh. It is in her evidence that there was fighting between two cows, one of Ashutosh Ghosh and another of Nemai Ghosh and, as a result, there was altercation between Ashutosh Ghosh and Nemai Ghosh. She has stated that Nikhil assaulted Biswanath Ghosh with batali and having sustained fatal injuries, he was taken to the house and died immediately. The offending weapon was produced at the time of trial and she identified it. (13) It is in the evidence of P.W. 6 that Nikhil dealt blow on the abdomen of Biswanath Ghosh and Biswanath Ghosh was taken to their house, but, he succumbed to the injuries. (14) P.W. 7 is Ashis Ghosh. It is also in the evidence of P.W. 7 that when he came out of the house, accused Nikhil Ghosh dealt blow on Biswanath with batali. (15) P.W.8 Sudha Ranjan Sarkar, the Police Officer has stated that the weapon was recovered. (16) P.W. 9 is the Autopsy Surgeon who noted the following injuries:- "1. Fusiform (tappering in its end to edge) incised wound and right in the middle over the left half aspect of anterior chest wall measuring 1"xi/6"x chest cavity deep. 2. Two fusiform incised wound over right half of anterior chest wall both measuring 1"x 1/6"x chest and abdominal cavity deep. On dissection, I found injury No. 1 penetrated into the left lunge causing massive left haemo thorax (collection of blood). Right one penetrated into the pericardial cavity and base of the heart causing left and right ventricular penetrated and massive haemo pericardium. Another left sided injury penetrated right lung and caused right sided haemo throx. In my opinion death was due to shock of haemorrhage of above noted injuries which was ante mortem inflicted by sharp cutting weapon and homicidal in nature." (17) On perusal of the evidence as discussed above, we find that the ocular version finds support from the medical evidence regarding the injuries inflicted on different parts of the body of Biswanath Ghosh. As regards the injury on the person of appellant Nikhil, learned Judge also observed that the injuries on the person of Nikhil were simple in nature as per Exhibit A. Mr. Bhattacharya submits that although information was given by Nikhil earlier, no case was registered by the P.S. It is evident that none of the injured including Biswanath had any weapon with them at the material time. So we are unable to accept the contention of Mr. Bhattacharya that following the tussle between two cows belonging to the rival groups, there was free-fight between the parties. The contention that FIR was lodged on the next day of the incident, although, police was present during the night of the incident, as argued by Mr. Bhattacharya, does not cast any shadow of doubt on the veracity of the prosecution case, so far as the infliction of injuries on Biswanath by the appellant is concerned. We are of the view that the evidence on the point of infliction of injuries on the person of Biswanath by the appellant Nikhil Ghosh, is unimpeachable. (18) Mr. Bhattacharya has drawn our attention to the evidence of P.W. 5 wherefrom it would appear that at the relevant time, Nikhil was cutting date-palm tree for the purpose of extracting juice. Mr. Bhattacharya wants us to believe that there was no intention on the part of the appellant to cause death. Having regard to the nature and extent of the injuries as noted by the Autopsy Surgeon and the nature of the weapon used in causing the injury, we are of the considered view that the case squarely comes within the purview of Section 304 Part-l of the Indian Penal Code. After giving anxious consideration to the submissions made by the learned Counsel of both sides and on careful considerations of the materials-on-record, we maintain the conviction recorded by the learned trial Judge in respect of the appellant. (19) As regards the question of sentence, having regard to the nature and gravity of the offence committed by the appellant and also the facts and circumstances of the case, we are of the considered view that justice will be sub-served if the appellant is sentenced to suffer Rigorous Imprisonment for ten years and to pay fine as directed by learned trial Court. The appeal is allowed in part. The appeal is allowed in part. Accordingly, we modify the impugned judgment and direct the appellant to suffer Rigorous Imprisonment for ten years under Section 304 Part-l of the Indian Penal Code and to pay the fine of Rs.5,000/- in default to suffer further Rigorous Imprisonment for six months. (20) Let a copy of this judgment be sent to the Correctional Home where the appellant is now detained. A copy of the judgment along with the Lower Court Records be sent down to the learned trial Court immediately. The learned trial Court will issue modified jail warrant. Urgent xerox certified copy, if applied for, be handed over to the parties as early as possible.