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2012 DIGILAW 568 (CAL)

Kishori Bala v. STATE OF WEST BENGAL

2012-06-29

RAGHUNATH BHATTACHARYA

body2012
JUDGMENT Raghunath Bhattacharya, J. 1. This appeal is directed against the judgment of conviction and sentence passed by Additional District and Sessions Judge, 2nd Court, Nadia at Krishnanagar in Sessions Trial No. VII(VI) 07 sentencing thereby the appellants to suffer R.I. for six years and to pay fine of Rs. 1000/- each in default to suffer S.I. for six months more each for the offence punishable under section 304(II) IPC and to suffer S.I. for six months each and to pay fine of Rs. 500/- each in default to suffer S.I. for two months more each for the offence punishable under section 323 IPC in this order that both the sentences are run currently. A thumbnail sketch of the prosecution case is that on 08.04.2005 at about 4 P.M. Reba Barui, the elder sister of the de facto complainant was proceeding towards sale market then she had a hot altercation with the wife of Jagadish Biswas, their neighbour. In continuation of that Jagadish Biswas, Riko Biswas, Apu Biswas, Kishori Bala, Rai Bala, Tushar Bala of her village being armed with deadly weapons assaulted Hare Krishna Barui, the father of the de facto complainant, Reba Barui, the elder sister, Hari Chand Barui, elder brother and Monkhush Barui, the mother of the de facto complainant when they are standing in front of their house. They are taken to the Bethuadahari Hospital and admitted there. Thereafter the father of the de facto complainant was transferred to Saktinagar Hospital. From Saktinagar Hospital on 13.04.2005 father of the de facto complainant was referred to Nilratan Sarkar Medical College and Hospital for further treatment and on that night the father of the de facto complainant succumbed to the injury. Hence the prosecution case. 2. On the basis of the complaint police took up investigation of the case and subsequently charge sheet was submitted under section 302/34 and 323/34 IPC against the accused persons. 3. The defence case as it appears from the trend of the cross-examination of the prosecution witnesses as well as from the statement of the accused persons who were examined under section 313 Cr.PC is that of absolute innocence. 4. The learned Trial Judge upon consideration of the materials-on-record passed the impugned judgment holding that the P.Ws. 3. The defence case as it appears from the trend of the cross-examination of the prosecution witnesses as well as from the statement of the accused persons who were examined under section 313 Cr.PC is that of absolute innocence. 4. The learned Trial Judge upon consideration of the materials-on-record passed the impugned judgment holding that the P.Ws. particularly the eye witnesses to the occurrence and the medical evidence are trustworthy and as a result of the assault on the father of the de facto complainant, Hare Krishna Barui died on 09.04.2005, Learned Judge has further held that the prosecution case depends upon the P.Ws. who were eye witnesses to the occurrence and also others P.Ws. who are reliable and the cogent medical evidence and the P.M. report. The learned Judge rejected the defence version that the prosecution witnesses including the independent witnesses have been declared hostile. Learned judge held that it is not a case of free fight between the two groups not it is a case of private defence from the side of the accused persons. Thus learned Judge convicted all the accused persons as mentioned in his judgment. 5. Mr. Bhattacharya, learned Counsel appearing for the appellant submits that as many as fifteen witnesses were examined from the side of the prosecution. Out of these fifteen witnesses P.W. 1 Harish Barui, the de facto complainant P.W. 2 Swapan Mondal, P.W. 3 Dayal Mondal, P.W. 4 Dipankar Mondal, P.W. 5 Asha Lata Mazumdar, P.W. 6 Swapan Biswas, P.W. 8 Prabhati Mirdha have been declared hostile by the prosecution. According to P.W. 7 who was doctor by profession and posted at Bethuadori PHC on the date of incident, examined one Monkhushi Barui and found that she sustained simple injury. He also examined Hari Chand Barui and opined that injury sustained by him also simple in nature. According to Dr. Palas Mazumdar (P.W. 7) these two injured persons namely Monkhushi Barui and Hari Chand Barui have not stated to the doctor the name of the assailant who assaulted them. Though at the time of injury or at the time examination patient was conscious yet the reasons best known to them what prevented them from not disclosing the name of the assailant to the doctor this create a doubt in the mind of the Court about the overt act by the accused persons causing injury to these two injured persons. Though at the time of injury or at the time examination patient was conscious yet the reasons best known to them what prevented them from not disclosing the name of the assailant to the doctor this create a doubt in the mind of the Court about the overt act by the accused persons causing injury to these two injured persons. It was submitted by the learned Counsel Mr. Bhattacharya appearing for the appellant that according to P.W. 2 to 6 and P.W. 8 have been declared hostile all of them are known both the rival group and according to them incident took place in the dead of night and the night was dark whereas as per P.W. 1 the FIR maker incident took place in moonlit night. So, all these seven witnesses in my opinion do not help the prosecution case in any way. 6. It appears from the evidence of de facto complainant, son of the victim coupled with evidence of P.W. 9 to P.W. 11 respectively daughter, son and wife of the deceased Hare Krishna that on 08.04.2005 in the afternoon there was a hot altercation in between P.W. 9 and wife of Jagadish Biswas and on the same evening the accused persons armed with deadly weapons forcibly entered into the house of the complainant and mercilessly assaulted Hare Krishna and other persons as a result hare Krishna and other sustained serious injuries and they are taken into hospital. I have already pointed out that subsequently Hare Krishna succumbed to the injury at Nilratan Sarkar Medical College Hospital at Kolkata. 7. Now against the accused persons for commission of murder of Hare Krishna a charge under section 302/34 IPC was framed. Admittedly at careful scrutiny of the entire evidence on record it appears that occurrence took place in course of sudden quarrel and as a result charge under section 302 in my opinion as unwarranted. The entire attending circumstances must be taken into consideration for the purpose of finding out the nature of the actual offence committed. In the instant case accused infected blow on the head of the victim with a 'Da' on a sudden provocation and without any premeditation which resulted in the death of victim. The injury received by the co-accused was not explained by the prosecution in details and under such circumstances the charge framed under section 302 IPC cannot be sustained. In the instant case accused infected blow on the head of the victim with a 'Da' on a sudden provocation and without any premeditation which resulted in the death of victim. The injury received by the co-accused was not explained by the prosecution in details and under such circumstances the charge framed under section 302 IPC cannot be sustained. From the evidence on record it would appear that there was no intention or premeditation to cause the death of Hare Krishna. While deciding the question of intention the attending circumstances, the nature of injury, nature of weapons used are to be taken into consideration. From the evidence on record and also relying on the principle of law as discussed above I am of considered view that the framing of charge against the appellants under section 302 were liable to be quashed. 8. The learned lawyer for the defence has assailed the truthfulness of the testimony of P.W. 1, P.W. 9 to 11 on the ground that they are being very close relative of the deceased Hare Krishna and that no reliance should be placed on their testimony. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they should be guided by a spirit of revenge nemesis against the accused persons and in this process certain facts which may not to could not even stated may be imagine to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is the human psychology and no one can help it. 9. This is the human psychology and no one can help it. 9. As I find that the injuries inflicted upon the two victims namely Mankhush and Hari Chand are simple in nature and on careful scanning of the oral testimonies of the prosecution witnesses it appears that both the victims knew the assailant then I failed to understand what prevented them to state the name of the appellant to the doctor who examined them. Moreover, admittedly this is a basic principle that the Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not charge the basic version and the prosecution case may be discarded, the discrepancies which are due to normal errors of perception or observation should not be given due alliances. The Court by calling into and its best experience of man and matter is in difference cases must evaluate the entire materials on record by excluding the exaggerated version given importance any witnesses when doubt arises in respect of certain fact alleged by such witnesses the proper care is to ignore that fact only unless it cause injury of the murderer who is demolish the entire prosecution story. In the instant case firstly the charge framed against the accused person for commission of murder Hare Krishna is not sustainable in the eye of law. Secondly the other victim who sustained minor injury have not stated the name of the assailant who inflicted injury upon them. So, it can be safely concluded that witness is not going to add embellishments to their versions perhaps for the fear of their testimony being rejected by the Court. I must submit that the Court should not disbelieve such witness altogether if they are otherwise trustworthy but in the instant case the charge under section 302 is framed is not in accordance with law. Secondly the other victim who sustained minor injury has not stated the name of the assailant before the doctor which can be easily categorized as an independent witnesses so I am every doubt about the ocular version of the witnesses who sustained injuries. Learned Counsel for the State Mr. Ghosh cited three decision reported in AIR 1999 SC 3717 , 2009 (3) SCC CRI 96 and 2010 (5) SCC 445 (SC). Learned Counsel for the State Mr. Ghosh cited three decision reported in AIR 1999 SC 3717 , 2009 (3) SCC CRI 96 and 2010 (5) SCC 445 (SC). Out of the three decisions the decisions reported in 2009 is concerned I have gone through it and I am quite agreement with the observation made by the Hon'ble Supreme Court. So far the decision reported in 2010 is concerned the same is not applicable in the facts and circumstances of the present case. So far the decision of AIR 1999 is concerned. It was held that any irregularity or even illegality during investigation should not be treated as ground to reject the prosecution case. Admittedly there are some irregularities in the prosecution but the same was not so glaring that accused person would get the benefit of the same. 10. As I mentioned earlier that not a single independent witness is produced before this Court. No cogent explanation was given or non-production of the same. Even the local villagers who are eye witnesses to the occurrence have been declared hostile but a prosecution. No attempt was made on the part of the prosecution who conducted the trial in the Court below to clarify this defect. According to the said principle of law evidence of the injured witness cannot be easily displaced or disbelieved because their presence at the time of occurrence remain undoubted. In this case as pointed out earlier the near relation of victim Hare Krishna have not stated before the doctor in respect of the name of the assailant. Moreover, there is no evidence whether incident took place in the dead of night or in the dark. So, the entire prosecution case as I pointed out relied only upon the ocular version of the near relation of the victim. Moreover, they sustained injury and their ocular versions are not supported by any single witnesses even they have not disclosed the name of the assailant before the doctor. Though learned State Counsel Mr. Ghosh has tried his level best to uphold the judgment of the Trial Court yet I think due to the latches and lacuna on the part of the Trial Court itself I am of the opinion that it is not fair to confirm the judgment passed by the learned Trial Court. So, the appeal is allowed. Ghosh has tried his level best to uphold the judgment of the Trial Court yet I think due to the latches and lacuna on the part of the Trial Court itself I am of the opinion that it is not fair to confirm the judgment passed by the learned Trial Court. So, the appeal is allowed. All the appellants are found not guilty to the charge leveled against them, except Bijoli Biswas, rest of the accused are in custody. They are set at liberty at once. All the appellants/accused are discharged from their respective bail bond at once. 11. Let copy of this judgment along with Lower Court Record be sent down to the Court below at once. Urgent photostat certified copy, if applied for, be handed over to the parties as early as possible.