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2009 DIGILAW 70 (CAL)

STATE OF WEST BENGAL v. Nageswar Sharma

2009-02-05

G.C.GUPTA, KISHORE KUMAR PRASAD

body2009
Judgment : GUPTA, J. (1) This appeal preferred by the State is directed against a judgement dated 29th April, 1987 passed by the learned Additional Sessions Judge, 1st Court, Howrah, in Sessions Trial No. XXI(4) of 1985 arising out of Howrah P.S. Case No. 45 dated 25.3.1981 (G.R. 1099 of 1981) by which the learned Trial Court acquitted the accused (1) Nageswar Sharma, (2) Bhutnath Sharma, (3) Paresh Shaw @ Parash, (4) Uttam Shaw, (5) Gopal Prasad Sarkar @ Phatik, (6) Bhagat Shaw, (7) Dilip Shaw @ Sanatan and (8) Md. Kayum of the charges under Section 302 of the Indian Penal Code read with Section 149 of I.P.C./ 324 read with sections 148.149 of the Indian Penal Code. The accused Nageswar, Gopal and Paresh were also charged under Section 9B(2) of the Indian Explosives Act. (2) The facts and circumstances of the case briefly stated are as follows :- The family members of the party of the complainant were residents of premises No. 326/1 Belilious Road within the territorial jurisdiction of Howrah Police Station. The accused Nageswar was their neighbour. There was long standing dispute between the two families. In a criminal proceeding in which Nageswar was interested, P.W. 8 Jagar Singh was the accused. The accused Parash and Gopal were witnesses in that case. Jagar was acquitted by the Trial Court. An appeal preferred by Nageswar was pending on 25th March, 1981. (3) On the aforesaid day in the morning at 7.30 hours Sarban (P.W.6), a brother of Jagar was talking to P.W. 5 Suresh standing on the Belilious Road. From the Belilious Road, there is a blind lane which is known as Vistipara but the address of that house is 326/1, Belilious Road. While P.W.6 Sarban and P.W. 5 Suresh were talking with respect to their commercial matters, Sarban was attacked by the accused persons aided by 4/5 others. A hue and cry was raised. The family members of Sarban including female folks rushed to the place of occurrence, Sarban was rescued. The accused Hadis was armed with a knife. He had tried to assault Sarban with that knife but due to timely intervention of Jagar the injury was prevented, the knife was snatched and thrown in the nearby lane. The family members of Sarban including female folks rushed to the place of occurrence, Sarban was rescued. The accused Hadis was armed with a knife. He had tried to assault Sarban with that knife but due to timely intervention of Jagar the injury was prevented, the knife was snatched and thrown in the nearby lane. After the victim Sarban was rescued, the members of the party of the complainant turned back to go home when a bomb was thrown from behind which landed in front of Vimla (PW 3). Soon thereafter, another bomb was thrown which landed behind Gurdev and hit his back including buttock. The victim Gurdev was scantily dressed in an underwear. The impact of the bomb was so high that the underwear fell down on the road. Gurdev was seriously injured. Four other family members namely P.W. 3 Simla, P.W. 4 Jashbinder, P.W. 6 Sarban and P.W. 8 Jagar were also injured. (4) Hearing the sound of explosion, P.W. 13 Sakaldeo Singh, Head Constable posted in the town outpost accompanied by two constables rushed to the place of occurrence. He found remnants of bomb lying on the ground of that lane as also found 2/3 drops of blood. Kasiswar Majumder (P.W. 14), another Head-Constable, deposed to have taken the following steps after hearing the explosion of the bomb. "On that day I was at the T.O.P., at about 7-30 a.m. At that time 1 heard sound of bomb explosion coming from western side and from Belilious Road. I asked Sakaldeo Singh and Nurul Islam to rush to the place of occurrence with force and I contacted a Duty Officer over phone. I informed Howrah P.S. over telephone. I informed Howrah P.S. that there was bomb explosion and requested the officers to come to the spot immediately. I saw Sakaldeo Singh and Nurul Islam with force leaving T.O.P., for the place of occurrence. I went to the P.O. thereafter. I went inside a lane of Belilious Road. It is known as Bhistipara. On reaching there, I found splinters of bomb, some marks of blood and I came to know that 4/5 persons received injury due to the bomb explosion." (5) The members of the family helped Gurdev and the other injured persons to reach home. By that time Police arrived. It is known as Bhistipara. On reaching there, I found splinters of bomb, some marks of blood and I came to know that 4/5 persons received injury due to the bomb explosion." (5) The members of the family helped Gurdev and the other injured persons to reach home. By that time Police arrived. The P.W. 1 Piyara Singh made a statement which was recorded by the Sub-Inspector Niranjan Dey (P.W.22) at 8.00 A.M., which has been marked Exhibit I. The police arranged an ambulance and all the injured persons were taken to Howrah General Hospital. (6) P.W. 9, Dr. Subrata Ghosh, Medical Officer of the Howrah General Hospital, examined the injured persons. The injuries found by the P.W. 9 are as follows :-"On that day I examined one Gurdev Singh, 40 years, male, son of Delta Singh of 326/1, Belilious Road, P.S. Howrah at 8-50 a.m. who was brought by Constable 2677 Shew Prosad Rai, P.S. Howrah. Patient was conscious, but G.C. low. I found the following injuries :- 1) Lacerated wound over buttock, posterior chest wall and both legs. 2) Lacerated wound near the left knee joint. 3) Multiple lacerated wound over the abdomen. 4) Lacerated wound over left waist. Patient was in extremely shock stage, As such he was immediately sent to the Asceptic Ward for necessary treatment. Prognosis was grave at that time. Patient stated that he was assaulted by Nageswar Sharma this morning with the help of bomb, as a result he sustained the above injuries. These injuries may happen from explosion of a bomb. The other injuries upon the body of the patient might happen by splinters of bomb, I also examined one Jasbindar Singh, 19 years, son of Jagar Singh of 326/1, Belilious Road, P.S. Howrah, who was brought to the Emergency at 8-50 a.m. by Constable 2677 Shew Prosad of P.S. Howrah. The patient stated that he was assaulted by Nageswar Sharma, Bhutnath, Paras, Dilip, Hadis and others with some explosive materials this morning. As a result, he sustained the following injuries. Patient was conscious. G.C. average. 1) Lacerated wound over right thumb (fresh) 1 1/2" x 1/2" x skin deep. Prognosis was not unfavourable at that time. This injury may happen by splinter of bomb. I also examined Bimla Devi on the same day, 45 years. Female, wife of Jagar Singh of 326/1, Belilious Road, P.S. Howrah. Patient was conscious. G.C. average. 1) Lacerated wound over right thumb (fresh) 1 1/2" x 1/2" x skin deep. Prognosis was not unfavourable at that time. This injury may happen by splinter of bomb. I also examined Bimla Devi on the same day, 45 years. Female, wife of Jagar Singh of 326/1, Belilious Road, P.S. Howrah. She was brought to E.R. at 8.50 a.m. by Constable 2677 Shew Prosad. Patient stated that she was assaulted by Nageswar Sharma, Bhutnath, Paras, Dilip, Hadis and others with some explosive materials this morning. As a result she sustained the following injuries. Patient was conscious. G.C, average. 1) Lacerated wound over the left side of the abdomen 1/2" x 1/2" x skin deep. 2) Multiple abrasion over left forearm. 3) Abrasion, Haematima and tenderness over right arm 2" x 1/2" x skin deep. Prognosis was not unfavourable at that time. The injuries inflicted upon the person of the patient, may be inflicted by bomb. I also examined Jagar Singh, 50 years, male, son of late Delta Singh of 326/1, Belilious Road, P.S. Howrah, brought to E.R. at 8.50 a.m. by Constable 2677 Shew Prosad of P.S. Howrah. The patient stated that he was assaulted by Nageswar, Bhutnath, Paras, Dilip and others with the help of some explosive materials this morning. As a result, he sustained the following injuries : Patient was conscious. G.C. average. 1) Lacerated wound near the left ankle joint 2" x 1" skin deep. 2) Lacerated wound behind right knee joint 1" x 1/2"xskin deep. 3) Multiple abrasion over right side of the abdomen. 4) Multiple injury near right shoulder joint. 5) Burn mark near right elbow joint and back of the chest. Prognosis was not unfavourable at that time. Injury No.5 was likely to have been caused by bomb explosion. All other injuries may be caused by the splinter of bomb. I also examined Sarvan Singly 38 yesars male, son of late Delta Singh, 326/1, Belilious Road, P.S. Howrah, The patient was brought to E.R. at 8-50 a.m. on 25.3.81 by Constable 2677 Shew Prosad of P.S. Howrah. The patient stated that he was assaulted by Ngeswar Sharma, Bhutnath, Paras, Dilip and others with the help of some explosive materials this morning. As a result, he sustained the following injuries : Patient was conscious. G.C. average. 1) Lacerated wound near right elbow joint 1 1/2" x 1" skin deep. The patient stated that he was assaulted by Ngeswar Sharma, Bhutnath, Paras, Dilip and others with the help of some explosive materials this morning. As a result, he sustained the following injuries : Patient was conscious. G.C. average. 1) Lacerated wound near right elbow joint 1 1/2" x 1" skin deep. Patient complained of tenderness over the body. Prognosis was unfavourable at that time. This injury may be caused by the splinter of bomb." (7) The condition of the deceased Gurdev was critical. He was shifted, from Howrah General Hospital to S. S.K.M. Hospital on 25th March, 1981 at 12.15 noon and he succumbed to his injury at 2:05 P.M. on 26th March, 1981 as would appear from the Death Certificate (Exhibit 9). (8) At 8.35 hours on 25th March, 1981 from the eastern side of 326/1 Belilious Road, in Bhistipara which is a narrow lane, splinters of bombs, blood stained and controlled earth and a 7" long knife were seized by the P.W. 22, the Investigating Officer. The seizure list has been marked Exhibit 7. He also prepared a sketch map which was marked Exhibit 11. (9) From the dwelling house of the party of the complainant, bloodstained wearing apparels of one of the victims was seized at nine hours on 25th March, 1981 which has been marked Exhibit 2. The splinters, controlled and bloodstained earth, bloodstained underwear and the wearing apparels stained with blood were sent to Forensic Science Laboratory for examination. The report furnished by the FSL is Exhibit 4 which goes to show that each one of those articles contained blood. The nutbolt and jute string sent to FSL were reported to be the splinters of the bomb which marked material exhibits during the trial. (10) In Howrah General Hospital, the deceased-Gurdev made a dying declaration to the attending physician Doctor Ghosh (P.W.9) stating that "he was assaulted by Nageswar Sharma this morning with the help of bomb, as a result he sustained the above injuries." (11) Mr. Mahato, learned Advocate appearing in support of the appeal assailed the judgement. He submitted that the learned Trial Judge chose to indulge in fanciful doubts. His approach was altogether bad and he reached a wrong conclusion. (12) Commenting on the impugned judgment Mr. Mahato drew our attention to the evidence of the P.Ws. Mahato, learned Advocate appearing in support of the appeal assailed the judgement. He submitted that the learned Trial Judge chose to indulge in fanciful doubts. His approach was altogether bad and he reached a wrong conclusion. (12) Commenting on the impugned judgment Mr. Mahato drew our attention to the evidence of the P.Ws. 1, 2, 3, 4, 6, 7 and 8 who deposed that a little boy had come to their house and informed that someone wanted to talk Sarvan with regard to business. It is on this basis that Sarvan stepped out of the house. The learned Trial Judge felt that non-examination of that little boy was a big lacuna in the case of the prosecution. (13) Mr. Mahato contended that the fact that Sarvan was talking on the Belilious Road with Suresh Kumar Rampuria has been adequately proved. Therefore, Suresh must have stepped out from his dwelling house at one point of time or the other. The fact that Suresh (P.W.5) was talking to Sarvan (P.W.6) at the Belilious Road with respect to commercial matters also goes to show that arrival of Suresh must have been communicated to Sarvan. (14) The learned Trial Judge further held that "P.W.13 Sakaldeo Singh, who was attached to the T.O.P. at that time and who rushed to the place of occurrence stated in cross-examination that he did not hear any sound of bomb blast. Yet the prosecution case is that on hearing sounds of bomb blast the police personnel from the outpost, came." (15) Mr. Mahato has taken us through the entire evidence of the P.W. 13. We find that the P.W. 13 has indeed deposed in his Examination-in-Chief that he heard the sound of bomb explosion. In his cross-examination he denied the suggestion that he did not hear the sound of explosion of bomb. In his cross-examination he deposed that he did not hear any sound of explosion of bomb from the eastern side. That does not mean that he did not hear any sound of explosion. P.W. 14, who had really sent the head constable, deposed that he heard the sound of bomb explosion coming from the western side and from the Belilious Road. (16) Mr. Mahato added that on an imaginary ground that the learned Trial Judge chose to find fault with the case of the prosecution. (17) Mr. P.W. 14, who had really sent the head constable, deposed that he heard the sound of bomb explosion coming from the western side and from the Belilious Road. (16) Mr. Mahato added that on an imaginary ground that the learned Trial Judge chose to find fault with the case of the prosecution. (17) Mr. Mahato then drew our attention to the following finding of the learned Trial Judge :- "The further case of the prosecution was that at that time accused Nageswar, Gopal and Parash were armed with bombs and Nageswar had an iron rod in his hand. But all the prosecution witnesses stated before the Court that they did not hurl any bomb at that time or Nageswar did not assault Sarvan with that iron rod. If the accused persons had any intention to assault Sarvan they could have assaulted Sarvan most severely and they also could have hurled bomb on Sarvan at that time. There seems no reason for waiting. It is not probable that some accused persons with the help of others, will assault a person with fists and blows while they had in their hands bombs and iron rod." (18) Mr. Mahato submitted that the finding of the learned Trial Judge goes to show that he was oblivious of the fact that the bombs were, in fact, hurled. Five persons were injured. One of them died.Splinters of bomb were found. Controlled and bloodstained earth were seized then and there. Why were the accused waiting is answered by Mr. Mahato by saying that they were looking for an opportune moment to throw the bomb. This may be a possible view. We are however unable to agree with the learned Trial Judge that the accused had no intention to assault. This is contrary to the evidence altogether. The fact that the bomb was not then and there charged on Sarvan may suggest that the intention to kill was probably not there: (19) Another finding of the learned Trial Judge in order to disbelieve the case of the prosecution is that "According to the prosecution case Simla Devi was in front of all of them and she received injury. It is most natural that her wearing apparels would each fire due to bomb splinters. It is not the prosecution case that her wearing apparels were damaged." (20) Mr. It is most natural that her wearing apparels would each fire due to bomb splinters. It is not the prosecution case that her wearing apparels were damaged." (20) Mr. Mahato submitted that no one has suggested that a victim of bomb injury is also likely to have his wearing apparels burnt. The learned Trial Judge refused to take into consideration the evidence of the doctor (P.W.9) who was Medical Officer of Howrah General Hospital and had examined the victim Bimla and found her injured which we have already noticed. (21) The most formidable finding arrived at by the learned Trial Judge is worded as follows :- "I find that the de facto complainant along with his family members was returning home after rescuing Sarvan from the hands of the accused persons i.e. their enemies. They were all going to their home. How it was possible for them to see the accused persons who according to the prosecution hurled. How it was possible for them to see the accused persons who, according to the prosecution hurled bombs from behind ? Even if there was a bombing by Paresh it was impossible for the witnesses to know of the second explosion because in normal course of event, they will accelerate their speed and go inside their home. Now the prosecution case is that the two bombs were hurled from behind. It is not in evidence that the witnesses turned back only to see that the accused persons hurled bombs. It is impossible for a man to see anything which is going on behind him unless he is blessed with eye on the backside. Backside of a person is as dark as the night." (22) Mr. Mahato argued that two bombs, according to the evidence laid by the prosecution were charged. The first bomb landed in front of Bimla. He invited us to imagine the situation. If eight persons or ten persons are going together and a bomb lands in front of the person, who is leading the group, would they or would they not look behind to see as to who had hurled the bomb. The learned Trial Judge found that the second bomb was charged immediately after the first one. If eight persons or ten persons are going together and a bomb lands in front of the person, who is leading the group, would they or would they not look behind to see as to who had hurled the bomb. The learned Trial Judge found that the second bomb was charged immediately after the first one. The witnesses are expected in the normal course of human conduct to have looked back immediately after the first bomb was thrown and they could easily have seen at least the person throwing the second bomb. Therefore, the entire reasoning adopted by the learned Trial Judge is wrong and fanciful. (23) The learned Trial Judge disbelieved the evidence of the P.W. 9, the attending physician as regards the dying declaration made by the deceased Gurdev on the basis of the following reasoning :- "Now P.W. 9 who examined Gurdev or before whom Gurdev made the statement stated that at that time general condition of Gurdev was low. He was extremely shocked and his blood pressure was also low and he did not find the pulse-beating recordable. His opinion is that in that circumstances a patient will not be in normal mental understanding. Therefore, if that be so the statement made by Gurdev before P.W. 9, cannot be relied upon in view of the decision reported in 1976, Cr LJ 1548. That apart from the evidence of P.W. 1, I find that Gurdev was lying there when the I.O. (P.W. 22) recorded the statement of the de facto complainant. There seems no reason as to who prevented P.W. 22 i.e. the I.O. to apply for recording the statement of Gurdev Singh before appropriate authority. Moreover Jagar Singh who, according to the prosecution admitted Gurdev in S. S. K. M. Hospital, stated that Gurdev was conscious when he was admitted in S.S.K.M. If that be so why he did not make the statement to the attending physician. I find that Gurdev did not make any statement before the I.O. i.e. P.W. 22 implicating Nageswar. It is expected of a dying man to take the earliest opportunity to make any statement. I find that Gurdev did not make any statement before the I.O. i.e. P.W. 22 implicating Nageswar. It is expected of a dying man to take the earliest opportunity to make any statement. In view of above I cannot place any reliance upon the statement alleged to have been made by Gurdev before P.W. 9 i.e. the Medical Officer." (24) The learned Trial Judge in disbelieving the statement of the deceased has posed two questions as to why statement was not made to the Investigating Officer (P.W. 22). Why was statement not made to the attending doctor of the S.S.K.M. Hospital as if the statement if made to the investigating officer or the attending physician of S.S.K.M. Hospital that would have carried greater weight than the statement made to the P.W. 9, who was no other than the Medical Officer of the Howrah General Hospital. He is the person who had the first opportunity to examine the deceased. The learned Trial Judge also appears to have entertained a doubt that the deceased was conscious in the S.S.K.M. Hospital but he missed the evidence of the P.W.8, Dr. Banerjee who deposed that when the patient was admitted to the S.S.K.M. Hospital he was conscious. (25) Mr. Mahato concluded by saying that the learned Trial Judge in acquitting the accused persons ignored the evidence on record and indulged in fanciful doubts which are wholly divorced from reality. He added that the evidence adduced by the prosecution leaves no manner of doubt that the accused persons accompanied by four/five others with the common object of rioting and killing assembled at the place of occurrence and started assaulting Sarban. When he was rescued by his family members, the accused persons threw bombs injuring six members of the family out of whom Gurdev died on the following day in the hospital. He, therefore, prayed for setting aside the order under challenge and to punish the accused/respondents in accordance with law. (26) Mr. Bagchi, the learned Advocate appearing in support of the respondents did not seek to defend the judgement. He restricted his submission only as regards the degree of offence and the punishment which may be inflicted in this case. He submitted that it cannot be said that the intention of the accused persons was to kill either Gurdev or any other member of his family. He restricted his submission only as regards the degree of offence and the punishment which may be inflicted in this case. He submitted that it cannot be said that the intention of the accused persons was to kill either Gurdev or any other member of his family. It cannot also be said that Gurdev was the targeted victim nor can it be said that Sarban was the targeted victim. According to him the accused persons may have intended to teach a lesson to the members of the complainant party but there was no intention to kill. The bombs were hurled may be with the knowledge that the same might cause death but not with the intention to cause death because no one was not the targeted victim. He, therefore, submitted that the conviction in this case can at best be under Part II of Section 304 read with Section 149, I.P.C. (27) Mr. Bagchi also produced a xerox copy of a death certificate and submitted that the accused Nageswar Sharma died on 30th March, 1993. He also contended that the appeal preferred against him has abated. (28) Mr. Mahato disputed the submission of Mr. Bagchi. He submitted that in order to bring the case within the four corners of Section 304, I.P.C, Mr. Bagchi has to show that the case can be brought within one of the exceptions to Section 300 of the I.P.C. Mr. Mahato contended that it is not possible to bring the case within any of the exceptions to Section 300, I.P.C. (29) There is evidence before us to show that there was a family feud between the members of the complainant party and the accused Nageswar. If the accused persons, who had indulged into the act of rioting, really had intended to kill someone of the family of the party of the complainant then Sarban would have been killed at the first instance. Even according to Sarban at that time some 14/15 persons had surrounded him and began to assault him with fists, blows, kicks etc. All the accused persons were amongst those persons. When they began to assault him, he cried for help. P.W. 2 has deposed that the accused Nageswar, Gopal and Parash were armed with bombs and Hadis was armed with a knife. The knife of Hadis was snatched by Jagar Singh and thrown away in the lane. All the accused persons were amongst those persons. When they began to assault him, he cried for help. P.W. 2 has deposed that the accused Nageswar, Gopal and Parash were armed with bombs and Hadis was armed with a knife. The knife of Hadis was snatched by Jagar Singh and thrown away in the lane. Even then the bomb was not charged. The bombs were charged only when the members of the party of the complainant were returning home. The accused persons at that stage may have felt the sting of defeat. This feeling at that stage must have provoked them to throw the bombs regardless of whatever might happen. (30) We, therefore, are of the view that it is not correct to say that the case does not at all come within any of the exceptions of Section 300, I.P.C. We cannot also agree with Mr. Bagchi that the case would come within Part II of Section 304 of the I.P.C. The bombs were thrown with the intention to cause such bodily injury as was likely to cause death. (31) The accused persons are therefore convicted under Part I of Section 304, I.P.C. read with Section 149 of the I.P.C. They are also convicted under Section 148, I.P.C. Three persons, namely, Nageswar, Parash and Gopal are also found guilty under Section 9B(2) of the Indian Explosives Act. However, considering the fact that we have convicted them under Section 304 Part I of the I.P.C. read with Section 149, I.P.C., we are not inclined to award any separate punishment for the rest of the offences. (32) Heard the learned Counsel for the respondents in so far as the sentence is concerned. Learned Counsel submitted that the appeal is pending for more than 21 years and most of the respondents are now aged more than 50 years and therefore, some leniency should be made. Learned Counsel for the State/appellant did not make any submission in so far as sentence is concerned. Having heard the learned Counsel for the parties and after considering the facts and circumstances of the case we are of the opinion that nothing less than the rigorous imprisonment of 10 years shall serve the purpose of justice. The accused/respondents are accordingly punished. They are also sentenced to pay a fine of Rs. 5,000/-each, in default to suffer further rigorous imprisonment for a period of one year. The accused/respondents are accordingly punished. They are also sentenced to pay a fine of Rs. 5,000/-each, in default to suffer further rigorous imprisonment for a period of one year. They shall get the benefit of Section 428 of the Code of Criminal Procedure. They were directed to be re-arrested and released on bail by an order dated 23rd July, 1987. Their bail bonds are cancelled. They are directed to surrender to their bail bonds at once. (33) The Learned Trial Court is directed to take the respondents (1) Nageswar Sharma, (2) Bhutnath Sharma, (3) Paresh Show @ Parash, (4) Uttam Show, (5) Gopal Prasad Sarkar @ Phatik, (6) Bhagat Show, (7) Dilip Show @ Sanatan and (8) Md. Kayum in custody so that they may serve out the sentence passed by this Court. (34) Notice in that regard is also given through the learned Counsel, appearing before us for the respondents. (35) We express no opinion as regards the death certificate produced before us in support of the alleged death of the accused Nageswar Sharma. The police will make necessary investigation and shall take steps accordingly. Necessary direction shall be passed by the Trial Court. (36) The appeal is thus allowed. (37) Criminal Section is directed to communicate this judgment along with the Lower Court records to the concerned learned Trial Court forthwith for information and necessary action. Let xerox certified copy of this judgement, if applied for by the parties, be delivered to them upon compliance of all formalities.