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2012 DIGILAW 888 (CAL)

Dipak Jana v. STATE OF WEST BENGAL

2012-09-24

KANCHAN CHAKRABORTY

body2012
Judgment Kanchan Chakraborty, J. The challenge in this appeal is to the judgment and order dated 10th August, 2010 passed by the learned Sessions Judge, Purba Medinipore, in Sessions Trial No. 20/June/2008 thereby convicting the appellants under Sections 147/307 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 2 years and to pay fine of Rs.2,000/-each. 2. The judgment has been assailed by the appellants on the following grounds: (i) that the learned Trial Court failed to appreciate the evidence on record in its true and proper perspective; (ii) that the learned Trial Court framed charge in a defective manner and, thereby, caused prejudice to the appellants; (iii) that the learned Court failed to consider that no independent witness supported the prosecution case; (iv) that the learned Court erred in relying the evidence of the P.W. 5 sacrosanct ignoring the fact the a criminal case was pending between the father of the P.W. 5 and the appellants; (v) that the learned Court failed to take note of the fact that the injuries sustained by Debendranath Bera was simple in nature and could be self-inflicted; (vi) that the learned Court failed to take note of the fact that the corrosive substance, which was purportedly used by the appellants, was not seized and the clothes of Debendranath Bera was also not seized and sent to forensic laboratory to ascertain that it was actually acid or not; (vii) that the learned Court erred in believing the testimonies of P.W. 2 and P.W. 3; (viii) that the learned Court failed to consider that there was any intention on the part of the appellants to commit murder of Debendranath Bera and that they made attempt to fulfill such intention attracting the provisions of Section 307 of the Indian Penal Code; (ix) that the judgment, being otherwise bad in law, is liable to be set aside. 3. On 14.08.2000, a petition of complaint was filed by Rabindranath Bera in the Court of the Learned Additional Chief Judicial Magistrate, Tamluk, which was referred to Nandakumar Police Station under Section 156(3) of the Code of Criminal Procedure. 3. On 14.08.2000, a petition of complaint was filed by Rabindranath Bera in the Court of the Learned Additional Chief Judicial Magistrate, Tamluk, which was referred to Nandakumar Police Station under Section 156(3) of the Code of Criminal Procedure. It was alleged in the said petition of complaint, which was treated as First Information Report subsequently, that on 20.07.2000 at about 9 p.m. when Debendranath Bera came out of his house to ease himself, the appellants along with four others caught hold him and thrown him on public road. The appellants had beaten him up with fists and blows. The testicle and throat of Debendranath was throttled. The appellants and their companions decided to kill Debendranath by pouring acid on him. Appellant Dipak Jana fetched a bottle of acid from his shop and from a distance poured the same on the body of Debendranath. When Debendranath started groaning with pain, appellants and their companions kicked him like a football. Hearing the groaning of Debendranath, the de facto complainant and other people of the locality appeared in the scene and saved Debendranath. They took him to Nandakumar Police Station first of all and got a G.D. Entry recorded. The Officer-in-Charge of the Nandakumar Police Station sent Debendranath to Khejuri Beria Hospital for treatment. Debendranath was admitted and treated there from 20.07.2000 to 02.08.2000. The case was investigated into and in course of investigation, the Investigating Officer of the case collected injury report, discharge certificate, true copy of the G.D. Entry and examined available witnesses. Finally, the Investigating Officer of the case submitted a charge sheet against the appellants and other four persons under Sections 147/323/326/307 of the Indian Penal Code. The learned Trial Court, upon consideration of the materials placed before it, framed charges against all the accused persons including the appellants under Section 147/307 of the Indian Penal Code. The appellants and other co-accused persons pleaded not guilty to the charge and, accordingly, the trial commenced. In course of trial, eight witnesses were examined by the prosecution. The First Information Report, Injury Report, discharge certificate, true copy of G.D. Entry were admitted into evidence and marked exhibits. No witness was examined on behalf of the defence. The appellants and other co-accused persons pleaded not guilty to the charge and, accordingly, the trial commenced. In course of trial, eight witnesses were examined by the prosecution. The First Information Report, Injury Report, discharge certificate, true copy of G.D. Entry were admitted into evidence and marked exhibits. No witness was examined on behalf of the defence. The learned Trial Court, upon consideration of the evidence on record, oral and documentary, found that the appellants herein, namely, Dipak Jana, Madan Jana, Aravinda Bera and Dilip Jana committed offence punishable under Sections 147 and 307 of the Indian Penal Code and recorded their conviction and sentence, which is impugned in this appeal on the grounds stated earlier. 4. Mr. Milon Mukhernee, learned advocate appearing on behalf of the appellants, contended that there was inordinate delay in lodging the First Information Report. The date of incident was 20.07.2000 while the petition of complaint was filed in the Court of the learned Additional Chief Judicial Magistrate, Tamluk, on 14.08.2000 and the case was registered on 27.08.2000. That delay has never been explained. 5. Mr. Mukherjee contended further that there was defect in framing of charge and for that, the appellants were highly prejudiced. He contended that charge under Section 147 of the Indian Penal Code simplicitor was framed separately from the charge under Section 307 of the Indian Penal Code. Only these four appellants have been convicted while the other four were not found guilty under Sections 147 and 307 of the Indian Penal Code. There cannot be any charge of unlawful assembly. 6. Mr. Mukherjee next contended that Debendranath, the injured, who was examined as P.W. 2, has stated that after being assaulted, he raised alarm and his brother, Rabindranath appeared in the scene. He also stated that some neighbourers witnessed the incident. He has also mentioned the names of Ratan Mondal, Sukumar Manik and Jayanta Routh who were present at the time when the incident had taken place. Amongst them, Sukumar Manik, who examined as P.W. 4, has not supported the statement of the P.W. 2 that he was present at the time when the incident had taken place. Jayanta Kumar Routh, the P.W. 5, was not examined by the Investigating Officer in course of investigation and he was not also cited as charge sheet witness. 7. Mr. Amongst them, Sukumar Manik, who examined as P.W. 4, has not supported the statement of the P.W. 2 that he was present at the time when the incident had taken place. Jayanta Kumar Routh, the P.W. 5, was not examined by the Investigating Officer in course of investigation and he was not also cited as charge sheet witness. 7. Mr. Mukherjee also contended that the doctor, P.W. 8, who examined the injured on 20.07.2000, has not stated that the injuries detected by him were grievous in nature and might be sufficient to cause death of any human being. Mr. Mukherjee has drawn attention of the Court to the fact that the injury no. IV was, according to the P.W. 8, due to pouring of corrosive substance. The P.W. 8 nowhere stated that the injury no. IV was caused due to pouring of acid. Again, Mr. Mukherjee contended that the name of Dipak Jana was not specifically stated as the person who poured acid on the body of the injured. This apart, the bottle containing such corrosive substance or acid was not seized. Acid was poured on the right shoulder, not on any vital part of the body of the injured. Injuries so detected were simple in nature in view of Exbt.-2 (Injury Report). Mr. Mukherjee contended that it has not been established that the appellants had any intention to cause death of Debendranath. Had they any such intention, they could have done so very easily. They were many in numbers while Debendranath was alone. 8. Mr. Ghose, learned advocate for the State of West Bengal, contended that there is consistency in the evidence of P.Ws. 2, 3 and 5 regarding the alleged incident. There was no delay in informing police about the incident because the G.D. Entry No. 695 was recorded on 20.07.2000. That entry was made within 15 to 20 minutes after the incident had taken place and the names of the appellants were specifically mentioned as the persons who assaulted Debendranath and poured acid on his body. The doctor, who examined the injured Debendranath, recorded categorically that he was reported by the injured that he was assaulted by the appellants on 20.07.2000 at 9 p.m. Mr. Ghose contended further that the prosecution case has also been subscribed by the P.W. 8 who stated about the nature of injuries, specifically the injury no. IV. The doctor, who examined the injured Debendranath, recorded categorically that he was reported by the injured that he was assaulted by the appellants on 20.07.2000 at 9 p.m. Mr. Ghose contended further that the prosecution case has also been subscribed by the P.W. 8 who stated about the nature of injuries, specifically the injury no. IV. He next contended that to attract provisions of Section 307 of the Indian penal Code, it is not sine qua non that there should be some sort of injury. Therefore, whether the injuries sustained by Debendranath are simple or grievous is entirely immaterial. When acid was poured, it can well be assumed that the appellants intended to murder Debendranath. The judgment under challenge is based on cogent and clinching evidence. Therefore, it cannot be upset in appeal. 9. It is needless to mention that in a case of like nature, the best witness is the injured himself because he would not substitute wrong person for his actual assailant. The P.W. 2, Debendranath, has stated categorically that on the relevant date and time he was attacked by the appellants who assaulted him with fists and blows and, thereafter, throttled him and pressed his testicles. Thereafter, appellant Dipak Jana rushed to his shop and brought a bottle containing some liquid and poured the contents of the bottle on the right shoulder for which he felt burning sensation. He suffered pains on his breast, neck and testicles. That incident happened in presence of some neighboures, such as, Ratan Mondal, Sukumar Manik and Jayanta Routh. His brother Rabindranath Bera rushed to the place of occurrence hearing his groaning. In his cross-examination he stated also that he could recognize the miscreants, i.e., the appellants, in the light of the nearby shops. He also stated in his crossexamination that his injuries were photographed and the photographs were handed over to the police officer. However, he failed to produce the negatives of the photographs, as those were not found available in his house. In his crossexamination he denied that there was political rivalry between him and the appellants. He also stated that when he was assaulted by kicks, he fell down on the ground and when he was in sitting position, acid was poured on his person from behind. 10. Mr. In his crossexamination he denied that there was political rivalry between him and the appellants. He also stated that when he was assaulted by kicks, he fell down on the ground and when he was in sitting position, acid was poured on his person from behind. 10. Mr. Mukherjee, learned advocate for the appellants, contended that when acid was poured from behind, it was not possible for the P.W. 2 to say who had actually poured acid on his body. 11. I do not find much substance in the submission of Mr. Mukherjee. It is basic rule of law that evidence of witnesses is to be read as a whole, not in an isolated manner. The P.W. 2 has stated categorically in his examination-in-chief that Dipak Jana rushed to his shop, brought a bottle containing some liquid and poured the content of the bottle on his right shoulder, which flown down his back side and he felt burning sensation. This particular statement was not challenged in the cross-examination, even in form of suggestion. When the P.W. 2 had seen Dipak Jana to rush to his shop, bring a bottle full of liquid and to pour it from behind, the statement made by him in his cross-examination appears to have no impact at all. 12. The incident was witnessed by the P.W. 3, Ratan Chandra Mondal, whose name has been mentioned by the P.W. 2. While he examined, he stated that he found Dipak Jana to pour acid on the person of Debendranath. Acid was poured on the right shoulder of Debendranath. He also found the appellants, who assaulted Debendranath, in front of the shop of Dipak Jana. The P.W. 3 has stated in his cross-examination that the acid was poured on the person of Debendranath while he was in standing position. Mr. Mukherjee, learned advocate for the appellants, put much stress on this statement of the P.W. 3 and stated that there is discrepancies in between the statement of P.W. 2 and P.W. 3 in the matter of posture of the P.W. 2 when acid was pored. This discrepancy, in my estimate, is entirely immaterial and does not make the statements of the P.Ws. 2 and 3 disbelievable. This type of discrepancies are expected to come when an witness is examined long after the incident. This discrepancy, in my estimate, is entirely immaterial and does not make the statements of the P.Ws. 2 and 3 disbelievable. This type of discrepancies are expected to come when an witness is examined long after the incident. Those are trivial in nature and the learned Trial Court has rightly put no importance on it. 13. The P.W. 4, Sukumar Manik, although named by the P.W. 2 as the person present on spot, has not stated that he witnessed the incident. He appears to be a post-incident witness, not an ocular witness. But he has stated categorically that Debendranath told him that the appellants poured acid on his person. This statement of the P.W. 4 was not challenged in his cross-examination even in suggestion form. 14. The prosecution case and the testimonies of P.Ws. 2 and 3 was supported by P.W. 5, Jayanta Kumar Routh, whose name was also mentioned by the P.W. 2 as a man present at the time of occurrence. He stated that he found the appellants assaulting Debendranath with fists and blows and, as a result, Debendranath fell on the ground. He found Dipak Jana to pour acid on the right side of the back of Debendranath. He stated that when Debendranath stood up, Dipak Jana again poured acid on the some portion of his body. In his crossexamination he stated that there was a criminal case in between his father and the appellants. He denied that there was any political rivalry with the appellants. The statement made by the P.W. 5 in his cross-examination was not controverted in the form of suggestion. The statements of P.Ws. 5, 3 and 2 appear to be consistent, reliable and acceptable. 15. The learned Trial Court while discussing the evidence recorded by it has also found evidence of P.Ws. 2, 3 and 5 trustworthy, credible and acceptable. Therefore, their evidence was relied on. I find that there was no wrong on the part of the learned Trial Court to believe the consistent testimonies of P.Ws. 2, 3 and 5. The statements of P.W. 2, 3 and 5 was supported by the P.W. 8, the doctor, who examined the P.W. 2 on the very night. The P.W. 8 stated that the injury was caused by the appellants as he was reported. The injury no. IV going to suggest that it was caused due to pouring of corrosive substance like acid. The statements of P.W. 2, 3 and 5 was supported by the P.W. 8, the doctor, who examined the P.W. 2 on the very night. The P.W. 8 stated that the injury was caused by the appellants as he was reported. The injury no. IV going to suggest that it was caused due to pouring of corrosive substance like acid. It was argued that corrosive substance may not be acid. Without going into detail of substance it cannot be ascertained which is corrosive but not acid and which is corrosive as well as acid. It can well be said that when the injury like charring and blacking of super-ficial skin was detected by the doctor, the substance which caused that injury, was not soap water or detergent water, but substance which can char the skin of a human body. 16. On careful perusal of the evidence on record, I find that the learned Trial Court had approached correctly and came to a convincing findings that the alleged incident was caused by the appellants. 17. It is true that the bottle containing corrosive article like acid and clothes of the injured were not seized and sent to forensic laboratory. But this defect in investigation does not necessarily strike at the root of the prosecution case, especially when the injured has made a consistent statement, which was supported by two non-interested witnesses and the doctor. 18. Now the question comes in whether offence committed by the appellant amounting to attempt to commit murder as defined in Section 307 of the Indian Penal Code or not. 19. Following decisions on behalf of the appellant have been referred to: (i) Hari Kishan and State of Haryana vs. Sukhbir Singh, reported in AIR 1988 S.C. 2127 ; (ii) Prabir Mondal & Anr., vs. State of West Bengal, reported in (2010) 1 SCC (Cri) 793. 20. In both the cases participation of the accused was found doubtful. In Prabir Mondal (supra), the First Information Report was filed after consultation with villagers. No injury but a bruise was detected. The Hon’ble Court held that the prosecution case was not in conformity with the evidence adduced on prosecution’s behalf. 21. In Hari Kishean (supra) no incised wound found on victim or any on the prosecution witnesses and participation of the appellant were doubtful. There was a fight between two groups out of sudden quarrel. The Hon’ble Court held that the prosecution case was not in conformity with the evidence adduced on prosecution’s behalf. 21. In Hari Kishean (supra) no incised wound found on victim or any on the prosecution witnesses and participation of the appellant were doubtful. There was a fight between two groups out of sudden quarrel. Although, the appellant was found with spear but did not use the cutting edge of the same. The Hon’ble Court held that there was no intention on the part of the appellant to commit murder. 22. In the instant case, the appellants were four in numbers while the injured was alone. The appellants did not use any hard, blunt or sharp cutting material in order to cause injury to Debendranath. They simply assaulted him with fists and blows and kicks. The liquid, which was poured on the right shoulder, only caused injury on the skin. All the injuries were simple in nature. Had the appellant any intention to commit murder, they would have done so very easily. They would have poured acid on more vital parts of the body of Debendranath other than shoulder. They would have used other articles or materials in order to eliminate Debendranath. They had the opportunity to do so. But, they did not avail it. Intention is one of the main ingredients constituting the offence under Section 307 of the Indian Penal Code. The prosecution must establish the same with sufficient and satisfactory evidence. Intention being a mental act, it can be deduced from the fact situation and conduct of the accused. The conduct of the accused, as I find, was not that of causing murder of Debendranath. Situation was obviously in their favour, had they any intention, to cause murder, but they did not avail the same. The injury sustained by Debendranath was simple in nature. The corrosive substance poured upon the body of Debendranath was not proved to be as acid in true sense. It is only established that the appellants assaulted the P.W. 2 and caused pain on his body. Therefore, in my estimate, the offence under Section 307 of the Indian Penal Code cannot be stated to have been established by the prosecution. At best, it can be said that the appellant has committed an offence under Sections 323/34 of the Indian Penal Code and they should be punished for the offence they had committed. 23. Therefore, in my estimate, the offence under Section 307 of the Indian Penal Code cannot be stated to have been established by the prosecution. At best, it can be said that the appellant has committed an offence under Sections 323/34 of the Indian Penal Code and they should be punished for the offence they had committed. 23. It was the contention of Mr. Mukherjee that there is defect in framing of charge. Even we accept that there is defect in framing of charge, that does not invalidate the criminal trial and consequently the judgment based of evidence. 24. In view of the discussion above, I find that accused are not guilty under Section 148/307 of the Indian penal Code. They are acquitted therefrom. But, they have committed the offence under Sections 323/34 of the Indian Penal Code and for that they are to suffer simple imprisonment for the period undergo nealready and to pay fine of Rs.1,000/-each. 25. Accordingly, the appeal fails and, is disposed of. 26. There will, however, be no order as to costs. 27. Interim order, if there be any, stands vacated. 28. Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of necessary formalities.