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2011 DIGILAW 545 (CAL)

Indrajit Kumar Sinha v. The State of West Bengal

2011-04-19

KALIDAS MUKHERJEE, MRINAL KANTI SINHA

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Judgment : KALIDAS MUKHERJEE, J. 1. This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 8th Court, Alipore in Sessions Trial No. 1 (6) of 1989 sentencing the appellant to suffer imprisonment for life under Section 302 I.P.C. 2. The case of the prosecution, in short, is that Kamal Krishna Mukherjee lodged complaint with the O.C., Chitpur P.S. alleging that he was residing at 65 Khelat Babu Lane as a tenant under Krishna Chandra. The informant used to reside there with his family consisting of his wife, two daughters, namely, Moumita Mukherjee and Paromita Mukherjee respectively. The elder daughter was approximately 10 years of age and a student of Class III. Elder daughter Moumita alias Dolai regularly used to go to the roof of the house for drying of clothing. Krishna Chandra, the landlord did not permit the informant to use the roof. Being helpless the informant began to use the roof of 4/Y/I Khelat Babu Lane which was just opposite to their house. In this way intimacy grew up between the family members of the informant and those of that family. The informant used to act as a private tutor of Indrajit Sen alias Tintu, the elder son of the family residing at 4/Y/I Khelat Babu Lane. Tintu used to go regularly to the house of the informant. Tintu passed B.Com. Examination from Jaipuria College in November 1987. On the date of incident, that is, on 3.12.1987 at about 5.15 p.m. the informant received information from his friend’s sister-in- law that his elder daughter Moumita alias Dolai fell down in the staircase. After coming back home at about 7.10 p.m. he came to learn that Moumita had been admitted to the R.G. Kar Hospital for treatment. The informant came to learn that Moumita went to the roof of the premises no. 4/Y/I for bringing the clothing. 3. The informant came to the hospital and learnt that Moumita had already expired. Thereafter, he returned home accompanying his wife Chandana Mukherjee. The informant went to the house at 4/Y/I Khelat Babu Lane and enquired as to how the incident took place. He went to the staircase and found blood spot there. He noticed that major portion of the staircase had already been washed with water. Thereafter, he returned home accompanying his wife Chandana Mukherjee. The informant went to the house at 4/Y/I Khelat Babu Lane and enquired as to how the incident took place. He went to the staircase and found blood spot there. He noticed that major portion of the staircase had already been washed with water. On further enquiry he came to learn that his daughter Moumita went to the roof of the said premises at 4/Y/I for bringing the dried up clothing and at that time Indrajit followed her and getting her alone there attempted to embrace her. In that position Moumita attempted to get down through the staircase and at that moment Indrajit allegedly pushed her from behind. Moumita rolled down the staircase and sustained injury on her head with profuse bleeding. Thereafter she was taken to the hospital where she succumbed to the injuries. After receipt of the complaint, Chitpur P.S. Case No. 417 dated 3.12.1987 was started. After completion of investigation charge sheet was submitted. The learned Trial Judge framed charge under Section 302 of the Indian Penal Code against the accused person who pleaded not guilty to the charge and claimed to be tried. 4. Mr. Dastoor appearing for the appellant submits that there is no eyewitness of the alleged incident and the aunt from whom the informant came to learn about the incident was declared hostile. It is contended that it is purely a case of accident and the victim slipped in the staircase, as a result of which she fell down sustaining injuries. 5. Mr. Dastoor submits that the Autopsy Surgeon was not justified in saying that it was a case of homicide. 6. Mr. Dastoor contends that at the time of trial there was exaggerated version of the incident. 7. Mr. Ganguly appearing for the State submits that the aunt was the only source of information on the basis of which the informant lodged the complaint. It is submitted that the aunt was declared hostile and the mother of the victim was not an eyewitness. 8. From the evidence on record it appears that the informant, that is, the father of the deceased lodged the F.I.R. having come to know about the incident from Mahua Sinha, that is, the aunt of the accused. 9. It is submitted that the aunt was declared hostile and the mother of the victim was not an eyewitness. 8. From the evidence on record it appears that the informant, that is, the father of the deceased lodged the F.I.R. having come to know about the incident from Mahua Sinha, that is, the aunt of the accused. 9. P.W.2 has stated that from Mahua Sinha he came to learn that when Moumita went to the roof of the house, accused Indrajit Sinha alias Tintu proceeded upstairs to reach the roof; the accused pushed Moumita from behind, as a result of which she fell down in the staircase and ultimately reached the landing of the staircase of the 1st Floor. 10. Mahua Sinha has been examined as P.W.3. She has stated that at about 4 p.m. she was engaged in sewing some clothes inside her room. She heard the voice of Tintu’s mother who informed that Dolai alias Moumita had fallen in the staircase and that she was going to call the mother of Moumita; immediately thereafter the mother of Moumita reached there and found that Moumita was lying in the landing of the staircase of the 1st Floor. P.W.3 has further stated that she accompanied the mother of Moumita and found that Moumita was lying in a pool of blood on landing of the staircase of the 1st Floor. She has further stated that when she and the mother of Moumita came to see Moumita, the accused was sitting in the room of her mother in the ground floor of the same premises. This witness was declared hostile by the prosecution. So the evidence of P.W.2 does not find corroboration from the evidence of P.W.3. 11. Chandana Mukherjee (P.W.7), the mother of the deceased has stated that at about 4.20 p.m. the mother of Tintu cried out and informed that Moumita had fallen in the staircase; she rushed to that place and noticed that at the ground floor the mother and uncle’s wife of the accused were enjoying tea in their respective rooms. It is in her evidence that reaching the staircase he found that on the landing of the 1st Floor Moumita was lying with profuse bleeding and the accused was standing in front of Moumita. She has stated that Moumita was completely unconscious. It is in her evidence that reaching the staircase he found that on the landing of the 1st Floor Moumita was lying with profuse bleeding and the accused was standing in front of Moumita. She has stated that Moumita was completely unconscious. It is in her evidence that at about 7.15 p.m. they were informed that Moumita had expired in hospital. It is therefore, clear that the presence of accused Tintu at the landing of the staircase of the 1st Floor as stated by P.W.7 was contradicted by P.W.3. Moreover, Mr. Dastoor has drawn our attention to the contradiction with the earlier statement under Section 161 Cr.P.C made by P.W.7 wherein Chandana Mukherjee, the mother of the deceased did not state about the presence of the accused at the landing of the staircase of the 1st Floor. It is contended by Mr. Dastoor that such statement of P.W.7 made for the first time at the time of trial cannot be relied upon. 12. The autopsy surgeon (P.W.11) has stated that death was due to the effects of the head injuries which were ante-mortem and homicidal in nature. He has stated further that the injuries were so sufficient that death would ensue instantaneously. But from the evidence it appears that the incident occurred at about 4 p.m. and thereafter victim was taken to the hospital. At about 7.15 p.m. she succumbed to the injuries. The evidence of Chandana Mukherjee (P.W.7) that she found accused on the landing of the 1st Floor does not find corroboration from the evidence of Mahua Sinha (P.W.3). According to P.W.3 Tintu was found sitting in the room of the 1st Floor. As regards the prosecution case that Tintu pushed the victim down from behind in the staircase, the evidence of P.W. 7 is not worthy of credence in absence of any corroboration from other P.Ws. There is, therefore, no evidence either direct or circumstantial about the involvement of Tintu in causing the death of Dolai. 13. Having heard the submission of the learned Counsel appearing for the parties and on careful consideration of the evidence on record, we find that the learned Trial Judge was not justified in passing the impugned judgment of conviction and sentence. We, therefore, set aside the impugned judgment. The appellant is acquitted of the charge. The appeal is allowed. 14. 13. Having heard the submission of the learned Counsel appearing for the parties and on careful consideration of the evidence on record, we find that the learned Trial Judge was not justified in passing the impugned judgment of conviction and sentence. We, therefore, set aside the impugned judgment. The appellant is acquitted of the charge. The appeal is allowed. 14. Let a copy of this judgment along with the lower court records be sent to the learned Court below immediately. 15. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.