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2014 DIGILAW 755 (CAL)

Nasera Bibi v. State of West Bengal

2014-08-13

JOYMALYA BAGCHI

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JUDGMENT Joymalya Bagchi, J. : None appears on behalf of the appellants to prosecute the matter. Mr. Pratip Kumar Chatterjee, learned counsel, is requested to appear as amicus curiae to assist the Court. The appellants have appealed against the judgment and order dated 31.03.2008 and 01.04.2008 passed by the learned Additional Sessions Judge, Fast Track 1st Court, Kandi, Murshidabad in Sessions Case No. 57 of 2005 convicting them for commission of offence punishable under Section 304 (Part II) of the Indian Penal Code and sentencing them to suffer imprisonment for seven years and to pay a fine of Rs.2,000/-each in default to suffer simple imprisonment for one month more. The prosecution case, as alleged, against the appellants is that victim Monhara Bibi, daughter of Monsur Sk. (since deceased) had come to her paternal home as she was nine months pregnant. On 11.09.1997 at around 11 a.m., she had gone to the pond opposite to the road on the Southern side of the house of one Jahur Sk. The youngest son of Monsur Sk., Basir Ali, splashed into pond and some water sprayed on the person of Jahur Sk. Jahur Sk. slapped Basir Ali and, as a result, victim Monahara Bibi protested. Upon the direction of Jahur Sk., appellants, namely Nasera Bibi (wife of Jahur Sk.), Manowar Sk. (son of Jahur Sk.), Jarina Bibi (wife of Manowar Sk.) and Nurjila Bibi (daughter of Jahur Sk.) assaulted the victim with fists, blows and kicks and, as a result, she was died. The father of the victim, Monsur Sk. (since deceased) lodged First Information Report with the Bharatpur Police Station resulting in registration of Bharatpur P.S. Case No. 39/97 dated 11.09.1997 under Section 304/34/114 of the Indian Penal Code. In conclusion of investigation, charge sheet was submitted under Sections 304/114/34 of the Indian Penal Code and the case was committed to the Court of Sessions, Murshidabad. Thereafter, the case was transferred to the Court of learned Sessions Judge, Fast Track, Kandi, Murshidabad, who framed charges under Sections 304/34 of the Indian Penal Code against the appellants. In course of trial, the prosecution examined as many as nine witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. It was specific defence of the appellants that the victim, being pregnant, had slipped on the bank of the pond and had died. In course of trial, the prosecution examined as many as nine witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. It was specific defence of the appellants that the victim, being pregnant, had slipped on the bank of the pond and had died. Upon conclusion of trial, learned Trial Court by judgment and order dated 31.03.2008 and 01.04.2008 convicted the appellants for commission of offence punishable under Section 304(II) and sentenced them, as aforesaid. Mr. Chatterjee, learned amicus curiae, submits that prosecution has failed to prove the case beyond reasonable doubt. The cause of death had not been proved and had been kept pending till receipt of Chemical Analysis Report. He further submits that the defence version that the victim had slipped and fallen on the bank of the pond resulting in her death was probablised by medical evidence. He accordingly prays for acquittal of the accused persons. Mr. Banerjee, learned counsel for the State, submits that there were a number of eye-witnesses who had seen the appellants physically assault the victim. He also submits that as the victim was heavily pregnant she died due to such assault. He, accordingly, prays for dismissal of the appeal. P.W.I , a relation of the de facto complaint. He is an eye-witness and deposed that the victim was physically assaulted by the appellants at the bank of pond. Due to such assault, the victim became unconscious and, as a result, died. He signed the Inquest Report. In cross-examination, he admitted that he carried on business as a hawker but, at the time of occurrence, he was not carrying on such business. He further submitted that Jahur Sk. and Mansur Sk. had died in the meantime. He denied that there was any political rivalry between the families. P.W. 2 is another relation of Mansur, who corroborates the prosecution case. In his cross-examination he stated that the bank of the pond was slippery. P.W. 3 isan independent eye-witness, who saw the assault on the victim. He was a signatory to the Inquest Report and proved his signature. He denied suggestions that he was not an eye-witness to the case or that as the victim had slipped on the bank of the pond and died. P.W. 4 is a relation of the victim and an eye-witness to the case. He was a signatory to the Inquest Report and proved his signature. He denied suggestions that he was not an eye-witness to the case or that as the victim had slipped on the bank of the pond and died. P.W. 4 is a relation of the victim and an eye-witness to the case. P.W. 5 is an another relation of Mansur Sk., the de facto complainant, and an eye-witness who saw the assault on the victim. P.W. 6 is a home guard who was attached to Bharatpur Police Station at the relevant time and took the dead body of the victim for post mortem. P.W. 7, post mortem doctor, conducted post mortem over the dead body of the victim. On examination he found following injuries: “The area below and mandible joint and cheek were sollowen. Two small punctate aberration mark over right forearm. Uterus-32 weeks size. A male dead baby was found inside the uterus (32 weeks). Both the chambers of heart were full of blood. Four ounce undigested rice was found on the stomach.” He stated that cause of death was kept pending till the receipt of chemical examiner’s report. In cross-examination he admitted that the injuries may be caused by fall also. P.W. 8 is the investigating officer and P.W. 9 is the scribe of the case. There are five eye-witnesses in the instant case, namely, P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5. P.W. 3 is an independent witness, who is not related to the family of Mansur Sk. He corroborated evidence of other witnesses that the victim was assaulted by the appellants. The consistent versions of the aforesaid eye-witnesses remained unshaken in cross-examination. In view of such consistent ocular evidence, I am constrained to hold that the prosecution has been able to prove that the injuries on the victim were due to assault meted out by the appellants and not due to fall on the embankment, as suggested on behalf of the defence. It is true that P.W. 7, the post mortem doctor, has stated that the injuries may also be caused due to fall. Such opinion evidence is not inconsistent with the prosecution version as it does not expressly overrule that the injuries could be caused due to assault. In the face of overwhelming ocular version, when medical evidence does not render it patently improbable, the prosecution case cannot be thrown out. Such opinion evidence is not inconsistent with the prosecution version as it does not expressly overrule that the injuries could be caused due to assault. In the face of overwhelming ocular version, when medical evidence does not render it patently improbable, the prosecution case cannot be thrown out. One cannot be also lost sight of the fact that the victim was a pregnant lady and such fact was with the knowledge of the appellants when they assaulted her. Hence, the appellants were fully aware that such assault upon a heavily pregnant lady was likely to cause her death. The ingredients of the offence under Section 304 (Part-II) of the Indian Penal Code is fully established in the facts of the case. Accordingly, I am of the view that the Trial Court rightly convicted the appellants for the commission of offence punishable under Section 304(II) of the Indian Penal Code. Coming to the point of sentence, I find that the appellants have already suffered imprisonment for more than six years. The incident occurred without any premeditation and on the spur of the moment. The appellants were unarmed did not act in an exceptionally cruel manner as would be evident from the nature of injuries. Out of four appellants, three are women and one of them is a septuagenarian. These mitigating factors persuade me to reduce the sentence of imprisonment imposed upon them to what they have already undergone. The amount of fine imposed upon the appellants, however, shall remain unchanged. Accordingly, the appeal is allowed to the aforesaid extent. Lower Court records along with a copy of the judgment be forthwith sent down to the concerned Trial Court. I record my appreciation for the able assistance extended by Mr. Chatterjee as amicus curiae to the Court in the instant case.