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2009 DIGILAW 597 (CAL)

Ram Chandra Yadav v. STATE OF WEST BENGAL

2009-08-06

ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE

body2009
Judgment : MUKHERJEE, J. (1) This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 13th Court, South 24 Parganas, Alipore in Sessions Trial No. 02(09) of 2001 arising out of South Port P.S. Case No. 70 dated 3rd June, 2001 under Section 302 Indian Penal Code sentencing thereby the appellant to suffer Rigorous Imprisonment for life. (2) On the statement of one Gurumurti Narayan, the case was registered wherein it was alleged that on 02.6.2001 in the afternoon he came to the club-room. While he was in the club-room with his friends, at about 9.00 P.M. one of his neighbours Smt. Rama Devi, wife of appellant Ram Chandra Yadav came to him and said that her husband had kept his second son confined in a room and inspite of calling him several times he was not opening the door of the room. On hearing this, the informant along with other members of the club went with Rama Devi to her room. The informant along with others found that the door was closed from inside and a light was burning inside the room. The informant saw through the window that Ram Chandra Yadav was standing with his son Pradip Yadav aged about 3-1/2 years. Ram Chandra was asked to open the door and let the boy go out. Ram Chandra abused them and said that unless they left they would be killed. In the meantime other people gathered there. The informant and others saw through the window that Ram Chandra had a bonti in his hand and was saying that he would kill unless they left the place. Saying this, Ram Chandra gave a blow on the throat of Pradip Yadav with the help of bonti. Information was sent to the P.S. and after a while the Police Officer came from the P.S. Thereafter, police broke open the door and arrested Ram Chandra. Ram Chandras wearing apparels were stained with blood at the time he was apprehended. (3) After completion of investigation, charge sheet was submitted under Section 302 Indian Penal Code. The charge was framed under Section 302 Indian Penal Code. Charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. Ram Chandras wearing apparels were stained with blood at the time he was apprehended. (3) After completion of investigation, charge sheet was submitted under Section 302 Indian Penal Code. The charge was framed under Section 302 Indian Penal Code. Charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. (4) The defence version is that some persons assaulted Ram Chandra and his son and out of fear he closed the door and has been falsely implicated in this case. (5) Mr. Mallick appearing for the appellant submits that the evidence of Court witness No. 1 Rama Devi, that is, wife of the appellant assumes much importance, inasmuch as, it appears from her evidence that there was altercation between her husband and some other people outside the house and 4/5 persons were assaulting her husband with fists and blows and thereafter her husband ran towards the room. Mr. Mallick submits that there were so many local people, but, none of them has been cited as witness in this case. Mr. Mallick contends that neither the bulb which was burning inside the room nor the broken parts of the door were seized by the police as proof that police broke open the door and seized the bonti from inside the room. It is contended that prosecution could not prove the motive behind the commission of such offence. Mr. Mallick submits that the incriminating material as appearing in the evidence that the appellant was seen to cut the throat of the boy was not stated to the accused at the time of examination under Section 313 of Code of Criminal Procedure. Mr. Mallick further contends that if the appellant is found guilty, the sentence may be reduced to Section 304 part I or part II of the Indian Penal Code. (6) Mr. Mitra, appearing for the State submits that although the appellant is convicted under Section 302 Indian Penal Code and sentenced to suffer Rigorous Imprisonment for life, there remains doubt as to the veracity of the prosecution case, inasmuch as, it would appear from the evidence of the I.O. (P.W. 6) that the accused had injury on his person and he was sent to hospital for treatment. Mr. Mitra submits that in absence of motive behind the commission of such offence, the prosecution case has to be considered from the standpoint of probability. Mr. Mr. Mitra submits that in absence of motive behind the commission of such offence, the prosecution case has to be considered from the standpoint of probability. Mr. Mitra submits that although he is appearing on behalf of the State, these aspects of the case struck his mind and he has placed the materials on record before the Court for consideration. (7) The learned Trial Judge on perusal of the evidence on record and after hearing the submissions of both sides recorded the order of conviction and sentence holding that from the evidence of Court witness No. 1 Rama Devi it would appear that she found her son Pradip in the lap of her husband and police arrested her husband by breaking open the door of the room. The learned Judge observed that from the evidence of P.W. 1, P.W. 4 and P.W. 5 it was clear that the dead body of Pradip Yadav was found inside the room with bleeding injury and subsequently police arrived there and recovered the dead body and arrested Ram Chandra Yadav by breaking open the door. The learned Judge observed that blood was detected in the wearing apparels of the deceased and on the bonti by the FSL. The learned Judge held that from the medical papers it appeared that the history of assault on the person of the accused was by the public and self-inflicted and were very simple in nature. The learned Trial Judge held that the boy was killed not by outsiders but by Ram Chandra Yadav. (8) It has been stated in the F.I.R. that on the date of incident at about 9.00 P.M. Smt. Rama Devi, wife of the appellant came to the club room and informed the informant that her husband had kept her second son confined in a room and inspite of calling several times he was not opening the door. P.W. 1 in his evidence has stated that he along with other members of the club rushed to the house of the accused and found from the window that a child was lying dead in a pool of blood inside the room and the door of the room was locked from inside. It is also in his evidence that the accused had a bonti and started shouting and telling others to disperse immediately. It is also in his evidence that the accused had a bonti and started shouting and telling others to disperse immediately. He has stated that police entered the room by breaking open the door of the room and seized the bonti (Mat. exhibit -1). It is in evidence of P.W. 4 that he found through the window that the body of Pradip Yadav was lying on the floor with severe bleeding injury and accused was standing inside the room with a bonti in his hand and the accused threatened them to leave the place, otherwise he would kill them. It is also in his evidence that police came there and with their help arrested the accused Ram Chandra Yadav by breaking open the door of the room. He has stated that police seized one iron rod and bonti from inside the room and also seized some blood from the place of occurrence. He has also signed in the seizure list. P.W. 5 has stated that after reaching the place of occurrence he found the door of the room closed from inside and through the window he saw that Ram Chandra was standing inside the room and gave blow to his son on the throat with a bonti. P.W. 6 is the I.O. who has stated that he along with force and some club members went near the room and noticed that the door was closed from inside and a window was open. He has stated that a boy was lying with the bleeding injuries and noticed that a man was standing inside the room with a bonti in his hand. It is in his evidence that an electric bulb was burning inside the room. He has stated that he arrested Ram Chandra after breaking open the door. He made the seizure. (9) The wife of the accused was examined as Court witness No. 1 and she has not supported the prosecution case and stated that at about 9.00 P.M. she was in the bed with three sons and her husband came and thereafter there was an altercation outside with a person. She noticed that 4/5 persons were assaulting her husband with fists and blows and she cried for help. She has stated that her husband ran towards the room and those persons also followed her husband. In the cross-examination she has stated that the neighbours assembled there on hearing cry. She noticed that 4/5 persons were assaulting her husband with fists and blows and she cried for help. She has stated that her husband ran towards the room and those persons also followed her husband. In the cross-examination she has stated that the neighbours assembled there on hearing cry. (10) The seized wearing apparels and bonti were sent to the FSL for examination and report. Exhibit No.11 is the report of the FSL where-from it appears that blood was detected on the wearing apparels and bonti. The report of the serologist (Exhibit -11) also reveals that bloodstains were found on bonti and human blood was there on the wearing apparels. The Autopsy Surgeon has been examined as Court witness No. 2. He has stated that death was due to the effect of the injuries noted which were antemortem and homicidal in nature. He noted the following injuries : - "Cut throat injury in front of the neck 7" X 3" X cavity, with the cut of the trachea and oesophagus. The wound margins are irregular, bruised and started from downwards, then reached upwards, up to below the chin, reached up to below the ears of both sides" (11) It follows from the evidence as discussed above that the occular version finds corroboration from the medical evidence. As regards the injuries appearing on the person of the appellant it appears from the injury reports (Exhibit 12,12/1) that there were laceration and injuries which were simple in nature. Since the injuries were simple in nature there is no obligation on the part of the prosecution as to how the appellant sustained injuries on his person. The contention of Mr. Mallick and Mr. Mitra that the injuries on the person of the appellant created a suspicion about the veracity of the prosecution case, cannot therefore, be accepted. Non seizure of bulb or the broken parts of the door does not cast any shadow of doubt on the veracity of the prosecution case. Evidently, no case was lodged by the appellant against his alleged assailants. Mr. Mallick has drawn our attention to the examination of the accused under Section 313 of the Code of Criminal Procedure and submits that no question was put to the accused that the witness had seen the accused to cut the throat of his son. Evidently, no case was lodged by the appellant against his alleged assailants. Mr. Mallick has drawn our attention to the examination of the accused under Section 313 of the Code of Criminal Procedure and submits that no question was put to the accused that the witness had seen the accused to cut the throat of his son. On perusal of the statement of the accused recorded under Section 313 Code of Criminal Procedure we find that as against question No. 3, the learned Judge had put the question to the accused stating that P.W. 4 and P.W. 5 found the accused inside the room with a bonti and his son was lying dead with bleeding injury and according to P.W. 5 the accused had killed his son. We are, therefore, unable to accept the contention of Mr. Mallick and Mr. Mitra that the incriminating evidence was not explained to the accused under Section 313 Code of Criminal Procedure. The learned Trial Judge rightly held that the boy was killed not by outsiders but by Ram Chandra Yadav. (12) The absence of motive, as urged by Mr. Mallick and Mr. Mitra relegates to insignificance, inasmuch as, there is direct, independent, credible and convincing evidence against the appellant. In case of circumstantial evidence motive sometimes assumes importance, but, in the instant case, the point as to the lack of evidence on motive, becomes academic and is not significant. (13) Considering the materials on record and having regard to the submissions made by the learned Counsel of both sides, we maintain the conviction as recorded by the learned Trial Judge. (14) As regards the question of sentence, we find that the learned Trial Judge passed the sentence of imprisonment for life without recording any sentence as to payment of fine. But under Section 302 Indian Penal Code the sentence of fine is mandatory because of the word "and" as enjoined in the Section itself. We find that the sentence as recorded by learned Trial Judge suffers from a legal infirmity. (15) After considering the facts and circumstances of the case, we find that justice will be sub-served if the charge is altered from 302 of Indian Penal Code to 304 Part I of Indian Penal Code and the appellant is sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. (15) After considering the facts and circumstances of the case, we find that justice will be sub-served if the charge is altered from 302 of Indian Penal Code to 304 Part I of Indian Penal Code and the appellant is sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-in default to suffer further rigorous imprisonment for one year. We, therefore, direct the appellant to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-in default for further rigorous imprisonment for one year. The impugned judgment is modified accordingly. Appeal is allowed in part. The learned Trial Judge will issue modified jail warrant accordingly. (16) Let a copy of this judgment along with the Lower Court Records be sent down to the learned Court below immediately. (17) Let a copy of this judgment be also sent to the Correctional Home where the appellant is now detained. (18) Urgent Xerox certified copy, if applied for, be handed over to the parties as early as possible.