Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 1060 (CAL)

Haripada Mahato v. STATE OF WEST BENGAL

2012-12-21

TOUFIQUE UDDIN

body2012
JUDGMENT Toufique Uddin, J. : 1. This appeal arose out of an order of conviction under Section 304(1) of the Indian Penal Code and sentence to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.1000/- in default to suffer further simple imprisonment for six months passed by the learned Additional Sessions Judge, 3rd Court, Midnapore by his judgement and order dated 17th May, 1989 in Sessions Trial No. 22 of February, 1987. 2. In the background of this appeal, the fact in a nutshell is that the defacto complainant Hiren Mahato lodged a complaint with Jhargram P.S. on 20.05.86 stating that on the date of incident at about 12 noon, he was engaged in his own house with some work while Haripada Mahato and Kalipada Mahato attacked the complainant being armed with iron rod and lathi. They assaulted the informant on his hands, legs and head. As a result, he sustained blood injury on his head. He fell down on the ground and lost sense. Thereafter, the accused person looted the belongings from the house of the informant and fled away. Subsequently, the villagers came and took the injured person to Manickpara beat house where he narrated the incident before the Police. Thereafter, he was sent to Manickpara Hospital. Therefrom he was shifted to Jhargram hospital. On receipt of written complaint, the Jhargram P.S. Case No. 11 dated 20.05.86 was started against the present two accused persons under Section 447/325/506 and 379 of the Indian Penal Code. Charge-sheet was submitted under Section 447/325/506 and 304 of the Indian Penal Code. 3. The case was committed to the learned court of sessions. 4. On hearing of both the sides, charge under Section 304(1)/34 of the Indian Penal Code was framed against both the accused persons. The contents of the same were read over and explained to them when they pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as 14 witnesses but the defence side examined none. 6. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. It appears from the trend of cross-examination of witnesses and the replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure, the defence case was the denial of offence with a plea of innocence. 7. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. It appears from the trend of cross-examination of witnesses and the replies given by the accused persons at the time of examination under Section 313 of the Code of Criminal Procedure, the defence case was the denial of offence with a plea of innocence. 7. On hearing of both sides, the learned trial court convicted the accused persons by the impugned judgement. 8. Hence the appeal. 9. Being aggrieved by and dissatisfied with the impugned judgement, the present appellants have lodged this appeal mainly on the ground that PW 3 has contradicted evidence of other witnesses regarding the carrying of the injured to the hospital. The learned Judge failed to consider that not a single neighbour was examined in this case besides the relation of the deceased. Further, it was taken that proper examination of the appellant under Section 313 of the Code of Criminal Procedure was not done. 10. Now, the point for consideration is if the impugned judgement suffers from any illegality or impropriety and hence calls for any interference or not. 11. Before going deep into the matter, some very relevant pieces of evidence be first considered. The defacto complainant was the deceased Hiren Mahato. The F.I.R. was lodged by him and it was proved by PW-1, the wife of the deceased. It was stated in the FIR itself by the deceased that the accused persons viz. Haripada Mahato and Kalipada Mahato rushed to his house, hit by iron rod and lathi and fractured his head and as a result of that he lost his sense. P.W.-1, wife of the deceased, stated that on 5th Jaistha, 1993 B.S., the incident took place when she and her husband were supplying straw bundles to the labourer, Sk. Sadar Ali, who was engaged in thatching their house. She further stated that her mother-in-law, P.W.-10 who resides with them, came back home weeping and disclosed that when she was tending goats in the field, the goats entered into the jute field of the accused persons and as such they abused her. Sadar Ali, who was engaged in thatching their house. She further stated that her mother-in-law, P.W.-10 who resides with them, came back home weeping and disclosed that when she was tending goats in the field, the goats entered into the jute field of the accused persons and as such they abused her. P.W.-1 further stated that after some time the accused persons came to their house being armed with iron rod and lathi and altercation started when Haripada Mahato came with iron rod and gave a blow on the head of her husband and Kalipada Mahato started to assault her husband with a lathi and when she went there she was also assaulted by them. She raised halla and subsequently, co-villagers viz. Guinram Mahato, Niranjan Mahato and Gunadhar Mahato came there and started nursing her husband. Thereafter, the villagers took him to Manickpara outpost by motor-cycle and subsequently her husband was taken at Jhargram Hospital while on the following day she went but her husband succumbed to his injuries after ten days. 12. PW-2, PW-4, PW-5 and PW-6 stated that soon after hearing the halla they rushed to the house of the deceased viz. Hiren Mahato and noticed that the deceased was lying injured on his courtyard. They came to learn from PW-1 that two accused persons assaulted her husband. PW-1 also stated that at the time of enquiry she described the incident to such witnesses thoroughly after the incident. PW-3 is the labourer, Sk. Sadar Ali. He was declared, as hostile no doubt. He stated that he actually did not see anything of assault as he was on the roof of the house and engaged in thatching straw on the roof. He stated that trouble started there, in the house of Hiren Mahato. He stated that Hiren was protesting against abusing to his mother by the accused persons when Haripada arrived with a small iron rod while Kalipada with a lathi. He said that he did not see anything more but getting down from the roof found Hiren injured. Therefore, it is clear from his evidence that the incident took place. So, being declared hostile, he does not render his evidence inadmissible. Further, he admitted in cross-examination done by the prosecution that he heard the halla from the roof of the house but he saw the accused persons arriving there. Therefore, it is clear from his evidence that the incident took place. So, being declared hostile, he does not render his evidence inadmissible. Further, he admitted in cross-examination done by the prosecution that he heard the halla from the roof of the house but he saw the accused persons arriving there. It means that he saw the accused persons armed with the weapons mentioned above. P.W. 7 identified the dead body before the Medical Officer. PW-8 is an A.S.I. U.D Case No. 131 dated 31.05.1986 was started by Kotowali Police Station and endorsed to him for enquiry. He prepared the inquest report of the dead body. PW-9 is a villager. He identified the dead body of Hiren Mahato to the police officer. PW-10 is the mother of the deceased. She corroborated the part of the evidence of assault that when she was tending goats in the field, the goats entered into the jute field of the accused persons and as such they abused her and when protested, altercation took place and after returning home she narrated the incident and then went to a doba for taking bath. Thereafter she heard a halla and then rushed and noticed that Haripada Mahato was armed with iron rod while Kalipada Mahato was armed with lathi and they were hurriedly proceeding to their house from their house (Complainant). She further stated that the deceased was lying injured on the ground and also found that Guinram Mahato, Niranjan Mahato and Gunadhar Mahato, Sk. Sadar Ali and PW-1 were present there. She stated that her son thereafter took the victim to the Manickpara Hospital. P.W.-11 is a Medical Officer who held the postmortem examination of the dead body and gave report that the death was due to the head injury measuring about 2½” x ¼” x bone deep old gaping wound and there was old 4” stitched wound over vertex. According to him, the death was due to the head injury stated above. P.W.-12 was a constable. In his presence, the injured person came to Manickpara beat house when G.D. entry was done and he signed it. PW-13 is a Medical Officer. He found facial cellulites and conjunctival infection. So he suggested to consult with an eye specialist. PW-14 is the Investigating Officer. P.W.-12 was a constable. In his presence, the injured person came to Manickpara beat house when G.D. entry was done and he signed it. PW-13 is a Medical Officer. He found facial cellulites and conjunctival infection. So he suggested to consult with an eye specialist. PW-14 is the Investigating Officer. He visited the spot, examined the witnesses, recorded their statements under Section 161 of the Code of Criminal Procedure and observing all formalities submitted the charge-sheet of the accused persons. 13. Trial court appears to have dealt with the evidence of witnesses meticulously and came to the finding that there was an incident of assault resulting in death of the deceased Hiren Mahato and his death was caused by the accused persons sharing common intention. After securitization of the evidence it appears to me that the witnesses successfully withstood the venom of the cross-examination. Nothing could be fished out from the cross-examination of such witnesses. 14. From the materials on record, the following admitted positions have emerged: i) Hiren Mahato was injured in his court yard and subsequently he succumbed to his injuries. ii) At the relevant point of time, one Sk. Sadar Ali was thatching straw on the roof of the house of the deceased. 15. The accused persons were examined distinctly and separately on incriminating pieces of evidence at the time of examination under Section 313 of the Code of Criminal Procedure. But their answer was simply denial of the offence with a plea of innocence. 16. It is an accepted phenomenon that the motive of a criminal case is only known to the wrong doer. It is very difficult to read the mind of the accused persons. Still then, if the motive is proved by the prosecution, it should be treated as adequate. In the given case, there was a dispute over entering of goats while tending by the mother of the deceased into the jute field of the accused persons. That is germane here. So, the motive is clear. 17. The charge was framed under Section 304(1)/34 of the Indian Penal Code to the effect that the accused persons, sharing common intention, assaulted the victim on 20.05.1986 causing death to him. i) Section 304(1) IPC reads as follows: “Punishment for culpable homicide not amounting to murder. That is germane here. So, the motive is clear. 17. The charge was framed under Section 304(1)/34 of the Indian Penal Code to the effect that the accused persons, sharing common intention, assaulted the victim on 20.05.1986 causing death to him. i) Section 304(1) IPC reads as follows: “Punishment for culpable homicide not amounting to murder. – Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death.” ii) Section 34 of the Indian Penal Code reads as follows : “When a criminal act is done by several persons in furtherance of common intention, each of such persons is liable for that act in the same manner as if it were done by him alone.” 18. Both the accused persons are stated to have attacked the victim. All neighbour witnesses conjointly said that both the accused persons were named by PW 1 for commission of the offence, causing death of the victim. 19. Learned lawyer Mrs. Pronoti Goswami, appearing on behalf of the appellants, challenged the conviction of the appellants on the following grounds amongst others. The offending weapons were not traced out, the P.O. was not shown in Exhibit 3/1 i.e. G.D. entry, the complainant did not mention who had struck iron rod, there was enmity between the accused persons and the deceased and litigation was going on between them, no sketch map was prepared etc. Last but not the least argument was that the occurrence took place on 20.05.1986 at 12 noon but the F.I.R. was lodged on 18.15 hours i.e. there was an unexplained delay. 20. I have duly considered the submissions made by the learned lawyers for the contesting parties. Now let it be seen how far the prosecution case has proceeded and if at all the findings arrived at by the trial court is justified or not. Why the case tilts in favour of the prosecution is for the following reasons: Section 6 of the Indian Evidence Act, 1872 and the illustration (a) thereto read as under: “6. Now let it be seen how far the prosecution case has proceeded and if at all the findings arrived at by the trial court is justified or not. Why the case tilts in favour of the prosecution is for the following reasons: Section 6 of the Indian Evidence Act, 1872 and the illustration (a) thereto read as under: “6. Relevancy of facts forming part of same transaction – Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration (a) – A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.” In this regard, the term “by-stander” needs a mention. The word “bystander” means a person present at the time of incident and not the persons gathering at the spot after the incident. While remark by the former is admissible in evidence that of latter is hearsay [ILR 1944 Lah 461]. A spontaneous statement made in the course of transaction is admissible based on the doctrine of res gestae. PW 3, Sk. Sadar Ali was reported by PW 1 to be engaged in thatching their house. He saw the accused person with deadly weapons at the place of occurrence. Although, he did not state specifically that he saw the accused assaulting the deceased. He heard the halla, came down from the roof and saw the accused persons. So, regarding presence of the accused persons at the P.O. on that date has been proved as a relevant fact and this piece of evidence of Sadar Ali is admissible for the purpose of proving the presence of accused persons who came with iron rod and lathi. He further stated that trouble started. 21. The evidence of the independent witnesses appears to be of clear and unimpeachable character. Section 6 of the Evidence Act is an exception to the general rule whereunder hearsay evidence becomes admissible. He further stated that trouble started. 21. The evidence of the independent witnesses appears to be of clear and unimpeachable character. Section 6 of the Evidence Act is an exception to the general rule whereunder hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6 what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gastae must have been made contemporaneously with the acts or immediately thereafter. The essence of the doctrine is that a fact which though not in issue, is so connected with the fact in issue “as to form part of the same transaction” that it becomes relevant by itself. We put reliance on the decision as reported in Sukhar Vs. State [ (1999) 9 SCC 507 ]. 22. To form a particular statement as part of the same transaction, utterance must be simultaneous with the incident or substantially contemporaneous that is made either during or immediately before or after its occurrence. (Bhairon Singh vs. State) reported in 2010(1) SCC (Cri) 955. PWs 2, 4, 5 and 6 stated that soon after hearing halla they rushed to the house of the victim i.e. the P.O. and saw him injured and learnt from PW1 about the incident of assault. 23. In this regard some examples may be set forth here. Statement made by a victim shortly after he sustained injuries that the accused inflicted him is admissible vide 1964(1) CRLJ 393. Here, in this case, after the incident Hiren Mahato was taken to the Manickpara beat house and he narrated the incident. 24. In another case, the son did not see shooting of his father by the accused persons. But hearing gun shot he reached the place of occurrence. Eye witnesses said that his father has been shot dead by the accused persons. Son’s evidence will go down as the admissible evidence in terms of the decision as reported in 2003 ALLJ 935. Further we may put reliance on AIR 2006 SC 302. Two witnesses came to the place of occurrence immediately after the incident had taken place, found the dead body and another injured in an unconscious state. Son’s evidence will go down as the admissible evidence in terms of the decision as reported in 2003 ALLJ 935. Further we may put reliance on AIR 2006 SC 302. Two witnesses came to the place of occurrence immediately after the incident had taken place, found the dead body and another injured in an unconscious state. They found the mothers of the two victims weeping and found two other injured witnesses there. One of them related the entire incident including the role played by the accused. The evidence of the two witnesses who came after the incident, heard all about the incident is admissible under Section 6 of the Evidence Act. Here, soon after the incident, PW-2, PW-4, PW-5 and PW-6 hearing the halla rushed to the place of the occurrence and heard from PW-1, wife of the deceased, about the incident and deposed in the Court in such a manner that left no room for doubting the genuineness of their statements. 25. The points of argument raised by the learned lawyer of the accused persons do not go to the root of the case and do not appear to be such as may help the appellants in any manner whatsoever. The delay in lodging the FIR does not appear to be fatal in view of the evidence available on record. Therefore, considering the gravity of the offence and the age of the appellant quantum of punishment imposed, I am of the opinion that there is no scope to give any benefit of doubt to the accused persons i.e. the appellants and the findings of the learned trial Judge appears to be correct. Accordingly, I do not find any merit in the appeal and the same stands dismissed. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.