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2013 DIGILAW 296 (CAL)

Nirapada Pandit v. STATE OF WEST BENGAL

2013-05-16

DIPAK SAHA RAY

body2013
Judgment :- Dipak Saha Ray, J. This appeal is directed against the Judgment and Order of conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track Court-II, Ulberia in connection with Sessions Trial Case No. 295 of 2007, arising out of Ulberia P.S Case No. 176 of 2003 dated 4.12.2003 under Section 304 of the Indian Penal Code. The prosecution case, briefly stated, is as follows: On 4.12.2003 one Malati Pandit had been to Ulberia P.S and lodged a written complaint with the Officer-in-Charge of Ulberia P.S alleging therein inter alia that on 4.12.2003 at about 12.30 hours her ‘Khurtuto Ja’ (wife of her husband’s cousin), Kalitara Pandit engaged a professional plucker of betel-nut for plucking betel-nut from her betel-nut trees situated in front of her house. One Nirapada Pandit and brother-in-law of Kalitara Pandit suddenly arrived there and started altercation with her and thereafter he assaulted Kalitara Pandit with a brick on her head causing severe bleeding injuries on her head. As a result Kalitara Pandit fell on the ground. The de-facto complainant who was washing ‘Karai’ by setting on a ‘ghat’ of a nearby pond rushed to the spot and applied water on the head where the victim sustained injury, but the victim succumbed to her injuries within a few minutes. It was further alleged that there was long standing enmity between Kalitara Pandit and Nirapada Pandit over landed property. On the basis of the said written complaint Ulberia P.S Case No. 176 of 2003 dated 4.12.2003 under Section 304 of the Indian Penal Code was started. Police investigated the case and after completion of investigation submitted charge-sheet against the accused/present appellant for the offence punishable under Section 304 of the Indian Penal Code. On the basis of the aforesaid allegations and other relevant materials, charge Under Section 304 of the Indian Penal Code had been framed against the accused/appellant herein. He, however, pleaded not guilty to the said charge and claimed to be tried when the said charge was read over and explained to him. As against this, the defence case as it appears from the trend of cross-examination and the statements made during examination of the accused person under section 313 of the Code of Criminal Procedure, was the denial of the prosecution allegations and the plea of innocence. As against this, the defence case as it appears from the trend of cross-examination and the statements made during examination of the accused person under section 313 of the Code of Criminal Procedure, was the denial of the prosecution allegations and the plea of innocence. In order to discharge the burden of establishing the guilt of the accused person, prosecution examined 17 witnesses. After taking into consideration of all relevant facts and circumstances and the evidence on record, the learned Trial Court found the accused person guilty for the offence punishable under Section 304 of the Indian Penal Code and was convicted accordingly. Being aggrieved by and dissatisfied with the impugned Judgment and Order of conviction and sentence, the convict as appellant has preferred the instant appeal. According to the prosecution there were two witnesses, one is the de-facto complainant P.W. 2 and another i.e., P.W-14, who was engaged by the de-facto complainant for plucking betel-nut from her betel-nut trees. But P.W.14 displayed unfriendly attitude towards the prosecution for which he was declared hostile. It is true that P.W.-14 did not support the prosecution case at all. He had resiled from his earlier statement altogether. So, his credibility had been seriously impeached and he stood thoroughly discredited. So, his evidence is rejected in toto. Now, on perusal of the records of the case it appears that the prosecution case is essentially based on the evidence of P.W. 2, the de-facto complainant of this case namely Malati Pandit who is said to be one of the eyewitnesses of this case, we shall have to analysis and evaluate the testimony of this witness. It is the prosecution case that while victim Kalitara Pandit was plucking betel-nut from her betel-nut trees with the help of P.W. 14, the accused/appellant herein suddenly came at the spot and started altercation with her. During such altercation, the accused all on a sudden assaulted the victim with a brick on her head causing grievous injury to which the victim eventually succumbed. P.W. 2 in her evidence has specifically stated that while she was washing ‘Karai’ at Puker Ghat, she saw the altercation between the accused and the victim and thereafter she noticed that accused assaulted the victim with a brick on her head. P.W. 2 in her evidence has specifically stated that while she was washing ‘Karai’ at Puker Ghat, she saw the altercation between the accused and the victim and thereafter she noticed that accused assaulted the victim with a brick on her head. From her cross-examination it appears that the place of occurrence is 5 to 7 cubic feet away from the Pukur Ghat where she was washing ‘Karai’. On close scrutiny of the evidence of P.W.-2 it appears that this witness has corroborated the F.I.R, lodged by her on the date of incident. It is the settled principle of law that the F.I.R. can only be used as a previous statement for the purpose of corroboration or contradiction of its maker. The learned defence counsel pointed out one contradiction in the evidence of P.W.- 2 during his cross-examination with reference to the contents of the F.I.R. For instance, F.I.R goes to show that P.W.-2 poured water on the head of the victim, Kalitara Pandit; but she in her evidence in Court has stated that she gave water in the mouth of the victim. But this is a minor discrepancy inasmuch as it does not shake the basic version of the prosecution case. This minor inconsistency and non-antagonistic contradiction does not make the entire evidence of P.W.-2 unbelievable, because we cannot ordinarily expect a witness to remember accurately the sequence of events which take place in a short time span or in quick succession. Later on when a witness is cross-examined he is supposed to get confused. Moreover P.W.-2 in her cross-examination has also stated that “I stated to the I.O that I was at Pukur Ghat and then and there rush to P.O. and put water for washing injury”. In this case it further appears that no question was put to P.W.-2 by the defence in the matter of basic version of the F.I.R. Thus a close scrutiny reveals that on all material particulars the oral testimony of P.W.-2 is consistent with the earliest version of the alleged incident as incorporated in the F.I.R. So, the earliest document (the FIR) completely corroborates the oral evidence which has been adduced by P.W.-2. From the evidence (Cross-Examination) of P.W.-2, it also appears that Nirapada (appellant herein) assaulted Kalitara from her backside causing injury on the left side of her head. From the evidence (Cross-Examination) of P.W.-2, it also appears that Nirapada (appellant herein) assaulted Kalitara from her backside causing injury on the left side of her head. The Autopsy surgeon (P.W.-15) in his cross-examination has stated that the place of injury seen by him on the middle part towards left. Considering the above evidence of P.W.-2 and 15, it appears that the said witnesses have corroborated the prosecution case regarding the place of injury. P.W.-2 during her evidence has also identified the brick (Exhibit-I) which was seized by the police in her presence, as the weapon of offence used by the accused person. It is argued on behalf of the appellant that during cross-examination, P.W.-2 stated that they used to take their lunch at 1/1.30 p.m. and thereafter, she used to go to Pukur Ghat at 2/2.30 p.m for washing utensils. But in this case, according to the prosecution the alleged incident took place at 12.30 p.m and as such this witness had no scope to witness the alleged incident because at that time she had no scope to go to the said Pukur Ghat for washing utensils. Accordingly, it is submitted that the evidence of P.W.2 is required to be discarded as unworthy of credence. From the cross-examination of P.W.-2, it appears that they used to take lunch at 1/1.30 p.m and, thereafter, she used to come at the concerned Pukur Ghat for washing utensils which were used for serving lunch. But here in this case, we find that at about 12.30 p.m i.e., at the time of alleged incident P.W.-2 was washing ‘Karai’ and not the utensils used at the time of lunch. From the evidence of P.W.-2 it is evident that she is the relative of both the victim and the accused/appellant herein. In the instant case, this witness cannot be coloured as interested witnesses when defence has not raised any doubt in that regard. It is not found that the P.W.-2 had any sort of enmity and/or hostile relation with the accused person. So, from the above facts and circumstances it appears that the testimony of this witness (P.W.-2) can not be disbelieved and her evidence can not be discarded altogether. Considering the above facts and circumstances and the discussion made above it appears that the argument made by the learned counsel for the appellant has no force at all. So, from the above facts and circumstances it appears that the testimony of this witness (P.W.-2) can not be disbelieved and her evidence can not be discarded altogether. Considering the above facts and circumstances and the discussion made above it appears that the argument made by the learned counsel for the appellant has no force at all. Naturally evidence of P.W.2 inspire confidence and safe reliance can be placed on this testimony. During trial the defence tried to establish a case that during altercation with the accused, Kalitara (victim) on account of weakness, fell on a brick lying on the ground; as a result, she sustained grievous injury on her head resulting in her death. But considering the evidence of the Autopsy Surgeon (P.W.-15) with reference to the nature and place of injury on the head of the victim as incorporated in the Post Mortem Report, it appears that the injury sustained by the victim cannot be caused due to fall on a brick; because the victim sustained injury on the vault of her scalp which could only be resulted if she fell from a high place keeping her head down words. Other witnesses i.e., P.W-1, 3,4,5,6,7,8,9,10,11,12,13,16 and 17 are the formal witnesses. Of them some identified the seized weapon of offence namely the brick. Some of them proved the written complaint (which sets the criminal law in motion), FIR, inquest report, seizure list etc. Here in this case, P.W.-1 and 4 did not see the occurrence. In presence of P.W-1 the brick (weapon of offence) was seized by the police under seizure list. Inquest report was held in presence of the said witness. P.W.-4 also identified the brick (MAT Exhibit-I) during trial of this case. For instance P.W.-3 also did not see the occurrence. He heard the incident from his wife and daughter; but his wife and daughter have not been examined in this case. P.W.-5, 6, 7 and 10 are not the witness to the occurrence. They only heard about the incident from different persons. P.W.-8 is a ‘Dom’ by profession, who helped the police for holding inquest over the dead body of Kalitara Pandit. P.W.-9 also did not see the occurrence. He only put his signature on the inquest report. P.W.-11 and 12 are the Police personnel who proved the formal F.I.R. P.W.-13 is a constable of police. P.W.-8 is a ‘Dom’ by profession, who helped the police for holding inquest over the dead body of Kalitara Pandit. P.W.-9 also did not see the occurrence. He only put his signature on the inquest report. P.W.-11 and 12 are the Police personnel who proved the formal F.I.R. P.W.-13 is a constable of police. He has stated nothing significant in respect of the prosecution case except proving the challan which was sent to the ‘Morgue’ along with the dead body. P.W.-16 and 17 are the Investigating Officers of this case. The said formal witnesses have played their role perfectly. The defence has failed to elicit anything in their evidence to discredit their testimony. It has already been pointed out that the prosecution case purely rest on the evidence of P.W-2 who is said to be one of the eye witnesses of the case. It has also been pointed out that the defence has miserably failed to elicit anything in her evidence which could persuade me to discard the evidence of this witness (P.W-2) as unworthy of credence. Thus taking an overall view of the facts and circumstances outlined in the discussion hereinbefore, I am satisfied beyond reasonable doubt that on 04.12.2003 at about 12.30 p.m during altercation, the accused/appellant herein inflicted injury on the head of the deceased by assaulting her with a brick in consequence of which victim Kalitara expired. Accordingly, the Judgment and Order of conviction and sentence which have been sought to be assailed, do not call for or deserve any interference. So, the Criminal appeal fails. Criminal appeal No. 440 of 2008 is, accordingly, dismissed on contest. The Judgment and Order of conviction and sentence passed by the learned Court below stands affirmed. Let a copy of this Judgment alongwith the LCR be sent to the learned court below at once. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.