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2011 DIGILAW 1037 (CAL)

STATE OF WEST BENGAL v. Nanda Bauri

2011-08-03

ASHIM KUMAR ROY, J.N.PATEL

body2011
JUDGMENT J.N. Patel, CJ. 1. THE State has preferred an appeal against acquittal of the respondents who were prosecuted on a charge under Section 302 read with Section 34 of the I.P.C. for causing death of Ruplal Bauri and the respondents Nanda Bauri and Iswar Bauri were charged for committing offence punishable under Section 324 read with Section 34 of I.P.C. for voluntarily causing hurt to Jiban Bauri by sharp cutting instruments like axe and the respondent Rajen Bauri for having committed offence under Section 323 of I.P.C. for voluntarily causing hurt to Nakul Bauri. 2. IN nutshell the prosecutions case can be summed up as under. On 18/01/1984, Nakul Bauri was tending his buffalos while his two sons, namely, Ruplal Bauri and Jiban Bauri were cutting earth in their land in order to make the same suitable for cultivation. IN the meantime, the respondents Nanda Bauri and Iswar Bauri armed with axe and Rajen armed with lathi came to that place and challenged Ruplal Bauri and Jiban Bauri for cutting the land, over which they had an altercation, the respondent/accused Iswar Bauri assaulted Ruplal on his head with an axe causing severe injuries, due to which he fell down and the respondent/accused Nanda Bauri assaulted Jiban Bauri with axe. On seeing the incident, Nakul Bauri rushed to the place of occurrence where he was assaulted by Rajen with lathi. Nakul raised alarm which attracted villagers. Seeing this, the respondents/accused fled away. Ruplal Bauri and Jiban Bauri were taken to Kustaur Hospital. Ruplal Bauris injuries being serious his case was referred to Purulia Hospital where he succumbed to his injury on the following day. On the day of incident, F.I.R. came to be lodged by Nakul Bauri against the respondents Iswar Bauri, Nanda Bauri and Rajen Bauri. INitially offences under Sections 326, 324 and 323 read with Section 34 I.P.C. came to be registered. On the death of Ruplal Bauri, additional offence under Section 302 read with Section 34 I.P.C. was registered. On completion of the investigation, charge-sheet came to be filed against the respondents who were tried on a charge for having committed offence under Section 302 read with Section 34 of I.P.C. and Section 324 read with Section 34 of I.P.C. Accused Rajen was further charged for having committed offence under Section 323 I.P.C. The respondents pleaded not guilty and claimed to be tried. 3. 3. THE respondents have taken a specific defence that they have been falsely implicated due to dispute over the land and that the wife of Ruplal Bauri had illicit relation with Jiban Bauri, due to which they had a quarrel and Jiban Bauri assaulted his brother Ruplal Bauri resulting in his death. It is their case that Nakul Bauri falsely implicated them out of previous enmity. During trial, prosecution examined as many as 11 witnesses and closed their case. On conclusion of the trial, the learned trial court acquitted the respondents of all the charges. 4. IT is contended by the learned counsel appearing for the State that the judgment and order of acquittal is based on findings which is inconsistent with the evidence on record and, therefore, liable to be quashed and set aside and the prosecution having established all the charges against the respondents, they should be convicted and punished for offences committed by them. It is further contended that the learned trial court failed to appreciate the evidence of the eye witnesses who were injured in the incident and misled itself by disbelieving their evidence which is corroborated by medical evidence on record. It is submitted that this is a fit case where the court should interfere and on the basis of evidence on record, convict the respondents for having committed offences under Section 302 read with Section 34, 324 read with Section 34 and 323 of I.P.C. 5. IT is submitted that the findings of the trial court are perverse that it was extremely hazardous to convict the accused persons on the basis of evidence of P.W. 1., as it is contradictory with reference to the F.I.R., and it suffers from several material contradiction with reference to evidence of P.W. 6. IT is submitted that the learned trial court has discarded the evidence of P.W. 6 on the premise that he was assaulted first and he fell down on the ground and lost his senses and, therefore, it was not possible for him to see what happened afterwards. 6. IT is submitted that the learned trial court has discarded the evidence of P.W. 6 on the premise that he was assaulted first and he fell down on the ground and lost his senses and, therefore, it was not possible for him to see what happened afterwards. 6. IT is submitted that the learned trial court failed to appreciate the evidence on record in its proper perspective and erred in holding that the prosecution has miserably failed to establish the charge under Section 302 read with Section 34 of I.P.C. so also the other charge under Section 324 read with 34 I.P.C. relating to assault on Jiban Bauri by Nanda Bauri and Iswar Bauri as well as under Section 323 I.P.C. against Rajen. The learned counsel appearing for the State has placed reliance on various authorities to emphasize on the scope of the powers of the High Court in interfering with order of acquittal. IT is submitted that evidence of partisan witnesses and non-examination of persons whose evidence is not material would not be good enough to discard the evidence of witnesses and latches on the part of Investigating Officer and faulty investigation would not vitiate the prosecution case. On the other hand, the learned counsel appearing for the respondents/accused has submitted that the appellate court should be slow in reversing the order of acquittal based on reasonable and proper findings unless there are good and strong grounds for interference. It is submitted that the learned trial court while rejecting the evidence of so-called eye witnesses has given good reasons and the findings are based on the evidence led by the prosecution which does not prove the case against the respondents beyond doubt. It is submitted that if the order of acquittal is not unreasonable or perverse, the court should not interfere in the matter of acquittal. 7. IT is contended by the learned counsel appearing for the respondents/accused that it has come in the evidence of P.W. 1 that there was a dispute going on between him defacto complainant and the accused persons over cultivation of land, that proceedings under Section 144 Cr.P.C. were initiated by the defacto complainant that objection was lodged in the land dispute before the District Settlement Officer between the defacto complainant and the accused, which was rejected and the appeal also came to be dismissed. 8. 8. THEREFORE, due to longstanding enmity between the parties, the defacto complainant has falsely implicated the respondents/accused, taking advantage of the fact that on the day of the incident when Ruplal Bauri came to be assaulted by Jiban Bauri as Jiban Bauri had illicit connection with the wife of Ruplal, and afterwards he has succumbed to his injury. It is further submitted that the respondents/accused were falsely implicated in the case as they had objected to the illicit relation of Jiban Bauri with the wife of Ruplal Bauri and on that Jiban Bauri threatened the accused persons saying DEKHE NEBO. It is, therefore, submitted that the appeal deserves to be dismissed. In the alternative, the learned counsel appearing for the respondents/accused has submitted that in case this court finds that the respondents are guilty of having assaulted Ruplal Bauri and Jiban Bauri, their case would fall under Section 304 Part-II and 326 of the I.P.C. and taking into consideration that more than 20 years have passed, the court may impose minimum sentence by way of punishment. 9. IN order to appreciate the rival contentions let us examine the evidence led by the prosecution. To establish the charge against the respondents/accused for having intentionally causing the death of Ruplal Bauri and voluntarily causing hurt to Jiban Bauri by means of sharp cutting weapons and causing simple injury to Nakul Bauri. Nakul Bauri (P.W. 1) and his son Jiban Bauri (P.W. 6) are the only eyewitnesses. It has come in the evidence of P.W. 6 that he along with Ruplal (since deceased), who was his elder brother had gone to the place of occurrence, i.e., to their Gora Land, between 7 A.M. to 8 A.M. to cut earth to make the land fit for cultivation and worked on the land upto 9/10 A.M. At that time Iswar, Rajen and Nanda (respondents/accused) came there. Nanda Bauri and Iswar Bauri had axes in their hand, Rajen Bauri had lathi in his hand. They charged them saying WHETHER THEY ARE PLOUGHING THEIR FATHERS LAND. On this Nanda Bauri assaulted him on his head with axe and on his left hand and Iswar Bauri assaulted Ruplal on his head with axe. IN the meantime, his father Nakul Bauri who was tending buffalos near the place of occurrence came to their rescue but he was assaulted by Rajen with lathi. On this Nanda Bauri assaulted him on his head with axe and on his left hand and Iswar Bauri assaulted Ruplal on his head with axe. IN the meantime, his father Nakul Bauri who was tending buffalos near the place of occurrence came to their rescue but he was assaulted by Rajen with lathi. According to Jiban Bauri, after assaulting their father Nakul Bauri, Rajen Bauri assaulted on his back with lathi and he fell down and became senseless and regained his sense in the hospital. 10. NAKUL Bauri P.W. 1 is the father of Ruplal and Jiban. He has in terms corroborated Jiban Bauri (P.W. 6), his son, on the incident. According to him, accused persons picked up altercation with his sons, Iswar Bauri assaulted Ruplal Bauri with an axe and Nanda Bauri assaulted Jiban Bauri on his head and his left hand and when he went there, Rajen Bauri assaulted him with lathi. Jiban and Ruplal fell down on the ground being injured. He raised alarm and after assaulting him the accused persons fled away. Hearing his shouts, some villagers, such as, Mariram Mahato, Shibu Karmakar, Bhushan Mahato, Laxmiram Mahali, Chhakri Mahali and others, came to the place of occurrence. He told them about the incident. According to him, villagers removed his sons Jiban and Ruplal to Kustaur Hospital where he accompanied them and from there he went to Purulia (M) Police Station and narrated the entire incident to Daroga Babu, who took down his statement. Contents of the same were read over to him and he put his left thumb impression (which is the first information report, being Exbt. 1). In the cross-examination of both the witnesses, except for an attempt to suggest that there were disputes between Nakul Bauri and his sons and the accused persons over some land and the criminal and revenue proceedings were going on and the fact that Jiban Bauri had illicit relation with the wife of Ruplal which was specifically denied by both the witnesses, nothing has been brought on record to show that they have falsely implicated the respondents/accused. On the other hand, we find that their evidence is cogent, consistent and reliable. The F.I.R. (Exbt. 1) sufficiently corroborates Nakul Bauri. 11. THE defence has not been able to point out any material contradiction or omission in their deposition before the Court. On the other hand, we find that their evidence is cogent, consistent and reliable. The F.I.R. (Exbt. 1) sufficiently corroborates Nakul Bauri. 11. THE defence has not been able to point out any material contradiction or omission in their deposition before the Court. Not only, the father and the son have withstood the test of cross-examination but their evidence also stand corroborated by the medical evidence. Dr. C. K. Sarkar (P.W. 11) is the first Medical Officer to have examined the injured at Kustaur Primary Health Centre of which he was the Medical Officer. In his evidence, he has deposed as follows :- On 18/01/1984 at 11 A.M., I examined one Ruplal Bauri, Hindu male, aged about 30 years and found the following injury on his person :- 1. Sharp cutting injury midway between two parietal eminence extending from occipital region to parietal region measuring about 3 in length and approximate in depth. THE patient was in semi-conscious state. I rendered him treatment and sent him to Purulia Sardar Hospital for better treatment. On the same day at 11.30 A.M. I examined one Jiban Bauri, Hindu male, aged about 28 years and found the following injuries on his person:- 1. Sharp cut injury in the left side of the occipito-parietal region about 2 in length and 1/4" approximately in depth. 2. A sharp cut linear injury in the lower lateral part of the arm just above the elbow joint about 1 in length and skin deep. 3. One abrasion on the back in the left lumber region having the length about 1 and width in breadth approximately. THE patient was conscious. 12. AS regards Ruplal I can not give any opinion regarding the nature of the injury as I referred him to Purulia Sadar Hospital for better treatment. In case of Jiban Bauri all the injuries were simple in nature. Jiban Bauri stated before me that he was assaulted by Iswar Bauri and Nanda Bauri of Barasini village. Ruplal was in semi-conscious condition and I suspected internal injury. So, I sent him to Purulia Sadar Hospital. Ruplal succumbed to his injury at Purulia Hospital. His body was sent for post-mortem examination. Dr. Sukumar Chatterjee (P.W. 2) conducted postmortem and on examination found the following injuries on the dead body :- One stitched wound over right parietal region of scalp, measuring 3 in length. So, I sent him to Purulia Sadar Hospital. Ruplal succumbed to his injury at Purulia Hospital. His body was sent for post-mortem examination. Dr. Sukumar Chatterjee (P.W. 2) conducted postmortem and on examination found the following injuries on the dead body :- One stitched wound over right parietal region of scalp, measuring 3 in length. On dissection, I found fracture of right parietal bone and intracranial haemorrhage. The subject was of average built. Rigor mortis was present when I held post-mortem examination. The death in my opinion was due to shock and haemorrhage as a result of the above noted injury which was ante-mortem and homicidal in nature. This injury was sufficient to cause death in ordinary course of nature. It is not possible for me to give any opinion regarding the weapon used for causing the injury as it was stitched up wound. S.I. Pranab Mitra (P.W. 9) is the Investigating Officer. He has stated that on 18/01/1984 at about 1.45 P.M. he was in-charge of Purulia (M) Police Station. At that time Nakul Bauri called at the police station and narrated the incident of assault on his sons. As per statement of Nakul Bauri, he recorded the F.I.R. (Exbt. 1) and took up the charge of investigation of the case and left the police station at 2.05 P.M. On visiting the place of occurrence he prepared a sketch map (Exbt. 2) and seized blood-stained and controlled earth from the place of occurrence and one lathi from the house of Nanda Bauri, as per the seizure list (Exbt. 2). He recorded the statement of the villagers and thereafter went to Kustaur Hospital at 6-30 P.M. when he came to know that Ruplal Bauri was removed to Purulia Sadar Hospital. So he met Jiban (P.W. 6) in the Hospital and recorded his statement. Then he came to Purulia Sadar Hospital at 9.05 P.M. to see Ruplal Bauri but he could not talk to Ruplal Bauri as he was in senseless condition. On the next day, i.e., on 19/01/1984, at 7.30 A.M. he came to know that Ruplal had died in the Hospital and arrested the accused Nanda Bauri from his house and added Section 302 I.P.C. to the case. In the course of investigation, he collected injury report and on his transfer he handed over the charge of investigation to the Officer-in-Charge, Purulia (M) Police Station, on 20/02/1984. In the course of investigation, he collected injury report and on his transfer he handed over the charge of investigation to the Officer-in-Charge, Purulia (M) Police Station, on 20/02/1984. In his cross-examination, he has admitted that he did not send the seized blood stained earth with controlled earth to the Forensic Science Laboratory, Kolkata, nor did he seize the wearing apparels of Ruplal Bauri and Jiban Bauri. This only goes to show negligence on his part in carrying out investigation and as rightly pointed out by the learned counsel for the State, this does not cause any dent in the prosecution case. In respect of Jiban Bauri (P.W. 6), he stated that Jiban Bauri had stated before him that Nanda Bauri assaulted him with tangi and not by an axe and he fell down. Jiban Bauri did not state before him that Rajen Bauri assaulted him with lathi. This, in our view, does not, in any manner, discredit the evidence of Jiban Bauri (P.W. 6) as regards the manner of assault, the person by whom he was assaulted and what injuries were suffered by him on his person. On this aspect, he stands corroborated by the medical evidence on record relating to injury which finds place in the medical evidence of Dr. C.K. Sarkar (P.W. 11) that he had three injuries on his person which coincide with his evidence that he was assaulted by Nanda Bauri with a sharp edged weapon on his head and left arm and by Rajen with a stick on his back. It is also clarified that the sequence of assault stated by him in his evidence also goes to show that he became senseless after Rajen assaulted him on his back with a lathi and he fell down, which has been misconstrued by the learned trial court. In appreciating his evidence, the learned trial court went on to observe that: The evidence of P.W. 6 is that he was assaulted almost by all the accused persons. If we consider his evidence with reference to the evidence of the Investigating Officer, we find that the assailant, whoever he might be, assaulted him at first and he fell down on the ground and he lost his senses. 13. THEREFORE, it was not possible for him to see what happened afterwards. If we consider his evidence with reference to the evidence of the Investigating Officer, we find that the assailant, whoever he might be, assaulted him at first and he fell down on the ground and he lost his senses. 13. THEREFORE, it was not possible for him to see what happened afterwards. The learned trial court failed to see that the presence of P.W. 6 at the place of occurrence when the respondents/accused assaulted him and his brother Ruplal Bauri cannot be doubted. THEREFORE, overlooking his evidence and disbelieving him was nothing but perverse approach in analyzing the evidence. Another important piece of evidence is that Bishakha Bauri (P.W. 7), mother of the deceased Ruplal Bauri, had actually seen accused Nanda Bauri with axe, Iswar Bauri with axe and brother-in-law of Iswar Bauri i.e. the third accused Rajen Bauri, with lathi in hand running towards the village at the time she ran towards the field to see what had happened, as villagers were running to the field, on hearing GOLMAL. The learned trial court disbelieved her evidence on the ground that the distance between the house of Nanda Bauri and the place of occurrence is about a mile and observed we do not know how it was possible for the villagers to hear such alarm from a long distance. The learned trial court also disbelieved the prosecution case and particularly the injured eyewitnesses, on a flimsy reason that they did not state specifically which weapon was with which particular person. Careful reading of their evidence goes to show that the witnesses have in terms assigned specific weapon like axe and/or tangi and lathi to the accused persons, i.e., Nanda Bauri and Iswar Bauri were armed with axe and Rajen Bauri with lathi. Axe and tangi are both sharp cutting weapons and the nature of injuries caused by the respondents/accused as per the medical evidence is sharp cutting injury on person of Ruplal as well as Jiban Bauri, which can be caused by a sharp cutting object, like axe. 14. THE learned trial court has dealt with the evidence on record in a piecemeal manner and has disbelieved the prosecution witnesses for minor discrepancy and went on to conclude: So, on considering the facts, circumstances and the entire evidence on record, it cannot be definitely concluded that any of the accused persons assaulted Ruplal resulting in his death. 14. THE learned trial court has dealt with the evidence on record in a piecemeal manner and has disbelieved the prosecution witnesses for minor discrepancy and went on to conclude: So, on considering the facts, circumstances and the entire evidence on record, it cannot be definitely concluded that any of the accused persons assaulted Ruplal resulting in his death. Therefore, the charge of murder cannot stand against any of them. It has further been observed by the learned trial court that: From the entire evidence, nowhere we find the meeting of mind among the accused persons to commit the murder of Ruplal by their act. Rather, according to the prosecution case, it is only Iswar who caused the death of Ruplal Bauri and nobody else. Therefore, the charge under Section 34 I.P.C. with the charge under Section 302 I.P.C. cannot stand. Accordingly, I hold that prosecution has miserably failed to establish the charge under Section 302/34 I.P.C. against any of the accused persons beyond any reasonable doubt and accordingly, they are entitled to an acquittal of that charge. So also, the charge under Section 324/34 I.P.C. against Nanda Bauri and Iswar Bauri and the charge under Section 323 I.P.C. against Rajen Bauri were also found by the learned trial court to be unsustainable. We find that the whole approach of the learned trial court to the consideration of the evidence is perverse and cannot be sustained in law. Therefore, the finding arrived at by the learned trial court stands vitiated and is quashed and set aside. 15. THE next question which is required to be examined is what offences have been committed by the accused persons. THE learned counsel appearing for the respondents/accused submitted that in case this court is of the opinion that the prosecution has established that the respondents/accused have assaulted Ruplal Bauri, Nakul Bauri and Jiban Bauri, then in that case it will have to be appreciated that the facts and circumstances which led to the incident clearly go to show that it was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. It is submitted that there was a dispute between the parties relating to the cultivation of land and it is in this background that the accused persons wanted to prevent Ruplal Bauri and Jiban Bauri from cultivating the land. THEy being cultivators, scuffle took place between them resulting in death of Ruplal Bauri and simple injuries came to be caused to Jiban Bauri (P.W. 6). It is submitted that the respondents/accused have not taken undue advantage or acted in a cruel or unusual manner and ran away from the place of occurrence as soon as they noticed the victims had fallen down on the ground. Therefore, at the most they have committed offence under Section 304 Part-II of the I.P.C. This contention of the learned counsel appearing for the respondents/accused is vehemently contested by the learned counsel appearing for the State. It is submitted that the victims were unarmed; on the other hand, the assailants/accused were armed with sharp cutting weapon like axe, tangi and lathi, by which they assaulted the victims. THE very fact that all the three accused persons came together armed with such deadly weapons is indicative of premeditation and, therefore, the case would not fall under Sub-Section (4) of Section 300 of I.P.C. and that they are all guilty of having committed offence under Section 302 read with Section 34 I.P.C. 16. IT is further submitted that they are also guilty of having committed offence under Section 324 read with Section 34 of I.P.C. for causing injuries to Jiban Bauri (P.W. 6) by sharp cutting weapon and that they assaulted Nakul Bauri with a stick. Considering the evidence on record, it is quite clear that the parties are relatives and there was a dispute going on between them over cultivation of land. P.W. 6 Jiban Bauri has stated that on the fateful day they had gone to GORA LAND between 7 A.M. to 8 A.M. in order to make it fit for cultivation. They worked upto 9/10 A.M. and at that point of time the respondents/accused appeared at the place of occurrence and questioned them over cultivation of land which resulted in altercation between the parties, as a consequence of which the respondents/accused assaulted them with axe and lathi. P.W. 1 Nakul Bauri, father of Ruplal Bauri and Jiban Bauri, has stated that Ruplal Bauri and Jiban Bauri fell down on the ground. P.W. 1 Nakul Bauri, father of Ruplal Bauri and Jiban Bauri, has stated that Ruplal Bauri and Jiban Bauri fell down on the ground. So he raised alarm and accused Rajen assaulted him with a stick and they all fled away. Therefore, it can be seen that the case of the respondents/accused will be covered under exception (4) of Section 300 I.P.C., as the act was committed in a heat of passion, further the assailant had not taken any undue advantage or acted in a cruel manner and the incident occurred over the issue of cultivation of the land and cannot be said to have been pre-arranged and premeditated. Therefore, we find that the respondents/accused can be convicted under Section 304 Part I read with Section 34 I.P.C., so far as assault on Ruplal Bauri is concerned, who succumbed to the injury on the next day, which was in the nature of a single blow on the head, a vital part and fatal being sufficient in ordinary course of nature to cause death. As regards the assault on Jiban Bauri, he has suffered sharp cutting injuries and one abrasion simple in nature caused by the accused persons, in furtherance of their common intention, therefore, they can be convicted for having committed offence under Section 324 read with Section 34 I.P.C. and for injuries suffered by their father Nakul Bauri having been assaulted by Rajen Bauri with a stick, the respondent/accused Rajen Bauri can also be convicted for having committed offence under Section 323 I.P.C. 17. HEARD on the point of sentence, we have taken into consideration all the pros and cons and particularly the fact that a period of 27 years has passed by, victims of the crime waited for justice, they deserve to be compensated. Therefore, we quash and set aside the judgment of the trial court acquitting the accused persons, and find them guilty of having committed offence under Section 304 Part I read with Section 34 I.P.C. and convict and sentence them to suffer rigorous imprisonment for 7 (seven) years with a fine of Rs. 10,000/- (ten thousand) each, in default, to undergo imprisonment for 3 (three) years. Further, we find that the respondents/accused guilty of having committed offence under Section 324 read with Section 34 I.P.C. and convict and sentence them to suffer rigorous imprisonment for 2 (two) years with a fine of Rs. 10,000/- (ten thousand) each, in default, to undergo imprisonment for 3 (three) years. Further, we find that the respondents/accused guilty of having committed offence under Section 324 read with Section 34 I.P.C. and convict and sentence them to suffer rigorous imprisonment for 2 (two) years with a fine of Rs. 1000/- each, in default, to undergo imprisonment for 6 (six) months. We also find Rajen Bauri guilty of having committed offence under Section 323 I.P.C. for voluntarily causing hurt to Nakul Bauri and Jiban Bauri and sentence him to suffer rigorous imprisonment for 6 (six) months with a fine of Rs. 500/-, in default, to undergo imprisonment for 1 (one) month. All the substantive sentences shall run concurrently and the accused persons would be entitled to set off against the sentence of imprisonment for the period of detention, if any, undergone by them during the investigation, enquiry or trial of the same case and before the date of such conviction. The fine recovered from all the accused persons shall be paid to the legal heirs of Ruplal Bauri. The respondents/accused are directed to surrender to their bail-bonds within a period of 7 (seven) days from the date of pronouncement of this judgment. On their failure to do so, the trial court shall cause them to be arrested and commit them to Correctional Home to undergo the sentence. The appeal is disposed of accordingly.