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2015 DIGILAW 518 (CAL)

Rampada Pandit v. State of West Bengal

2015-06-22

TAPASH MOOKHERJEE

body2015
JUDGMENT: Tapash Mookherjee, J. 1. The present appeal is directed against the judgment and orders of conviction and sentence dated 28.06.2010 and 29.06.2010 passed by learned Additional District and Sessions Judge, 2nd Fast Track Court at Chandannagar, Hooghly, in Sessions Trial No. 22/09 (Sessions Case No. 45/09). By the said judgment and orders the Trial Court found the appellant Rampada Pandit guilty of the offence punishable under Section 304- Part- II I.P.C. and sentenced him to suffer rigorous imprisonment for seven years and to pay fine of Rs. 2,000.00 (rupees two thousand only) in default, to suffer simple imprisonment for six months more. 2. The facts leading to the appeal in short, are as follows:- 3. On 23.10.2007 one Smt. Sikha Pandit submitted a written complaint at Singur P. S. and thereby alleged that in the evening of 19.10.2007 there was an altercation in between her husband Late Gurupada Pandit and her husband’s brother Rampada Pandit in connection with possession over a T.V.-table in the house and during such quarrel the appellant suddenly assaulted on the head of her husband with a bamboo on the provocation of appellant’s wife, due to which her husband sustained severe injury. It is further alleged in the said complaint that immediately after the incident the victim Gurupada was taken at first to the Singur Hospital from where the victim was referred to Medical College but as the said Hospital refused to admit the victim he was taken to Howrah Jain Hospital where the victim ultimately succumbed to his injury. On the basis of the aforesaid complaint Singur P.S. case No. 206, dated 23.10.2007 was started against the appellant Rampada Pandit and after completion of investigation charge sheet under Section 304/34 I.P.C. was submitted against the appellant Rampada Pandit and his wife Smt Rama Pandit. 4. After submission of the charge sheet the case was committed to the Court of learned Sessions Judge, Hooghly, in usual course from where the case was transferred to the Court of learned Additional District and Sessions Judge, 2nd Fast Track Court, Chandannagar for trial. 5. Considering the evidence collected during investigation charge under Section 304/34 I.P.C. was framed against the appellant and his wife and both of them denied the charge and pleaded their innocence. 6. Prosecution examined as many as twenty witnesses and produced some documents and materials as well, to establish the charge. 7. 5. Considering the evidence collected during investigation charge under Section 304/34 I.P.C. was framed against the appellant and his wife and both of them denied the charge and pleaded their innocence. 6. Prosecution examined as many as twenty witnesses and produced some documents and materials as well, to establish the charge. 7. Defence also picked up a specific case to the effect that on the day of the incident there was a quarrel between the appellant and the deceased and during such quarrel the deceased was assaulted by the deceased’s wife, i. e., the defacto complainant which ultimately resulted in the death of the husband of the defacto complainant. To establish such specific case the appellant as well as his wife examined themselves as the defence witnesses. 8. Considering the evidence thus produced on record the Trial Court came to the conclusion that the appellant’s wife Rama Pandit was not guilty of the charge framed against her and hence acquitted Rama Pandit. But the Trial Court found the appellant Rampada Pandit guilty of the offence punishable under Section 304 -Part-II I.P.C. and convicted him accordingly. The Trial Court, sentenced the appellant to suffer rigorous imprisonment for seven years and to pay fine of Rs. 2,000.00 (rupees two thousand only) in default, to suffer simple imprisonment for six months more. Being aggrieved by such judgment of conviction and order of sentence Rampada Pandit preferred the present appeal. 9. Mr Ganguly, learned Advocate for the appellant assailed the judgment of the Trial Court on the grounds, firstly, that the delay in the F.I.R. has not been explained properly, secondly, that the neighbours of the parties have not been examined, thirdly, that the absence of seizure of the blood stained apparels of the deceased. Mr Ganguly also pointed out some discrepancies regarding the nature of the alleged weapon of the assault. He further argued that the specific case taken up and proved by the defence was not considered at all, by the Trial Court which is unfair and against the spirit of justice. 10. On the other hand, learned Advocates for the State argued that all the aforesaid contentions of the appellant are devoid of any sound basis and the evidence on record has proved it beyond all doubts that the appellant killed his brother in their house on the day of the incident in issue. 11. 10. On the other hand, learned Advocates for the State argued that all the aforesaid contentions of the appellant are devoid of any sound basis and the evidence on record has proved it beyond all doubts that the appellant killed his brother in their house on the day of the incident in issue. 11. Smt Sikha Pandit (P.W.- 1) is the widow of the deceased. She stated that on 19.10.2007 at about 7.00 p.m. the appellant came to her husband and demanded the table upon which their T.V.- set was kept and a quarrel ensued between the appellant and her husband over that issue. She stated further that during such quarrel the appellant hit on the head of her husband as a result of which her husband sustained serious injury and blood started coming out from the nose and mouth of her husband and her husband became unconscious. She further stated that after such assault she took her husband to the Singur Hospital with the help of some local people from where her husband was referred to and taken to the Medical College, Calcutta but as admission was refused there, she took her husband to Jain Hospital at Howrahy where her husband ultimately died on 23.10.2007. During investigation P.W.-1 made a statement before the Magistrate under Section 164 Cr.P.C. which does corroborate her evidence on oath, in substance. 12. Sri Laxmi Narayan Manna (P.W.-2), Sri Hira Patra (P.W.-3), Budhadeb Manna (P.W.-4), Smt Chabi Bag (P.W.-5), Pratima Patra (P.W.-6), Ashok Manna (P.W.-10) and Samir Manna (P.W.-14) did not claim to have witnessed the incident of assaults. And according to them they knew the incidents of assaults either direct from the complainant or from other sources. 13. Koushik Ghosh (P.W.-7) scribed the F.I.R. as per the dictation of P.W.-1. He was not also an eye-witness. 14. Sri Sanath Santra (P.W.-8) took the deceased and others to Singur Hospital and thereafter to Medical College and lastly to Shibpur Jain Hospital in his vehicle bearing No. WB 10-N/0286, as claimed by him. However, he was declared ‘Hostile’. 15. Sri Rajkumar Pakira (P.W.-9) was a quack doctor of the village. He is known to the deceased’s family. He stated that in the evening of 19.10.2007 he was called to the house of P.W.-1 and he found there the deceased lying on his mother’s lap with bleeding from mouth and nose. 16. However, he was declared ‘Hostile’. 15. Sri Rajkumar Pakira (P.W.-9) was a quack doctor of the village. He is known to the deceased’s family. He stated that in the evening of 19.10.2007 he was called to the house of P.W.-1 and he found there the deceased lying on his mother’s lap with bleeding from mouth and nose. 16. Smt Gita Rani Pandit (P.W.-12) is the mother appellant and the deceased. According to her, the deceased was assaulted by the defacto complainant and as such she was declared ‘Hostile’ by the prosecution. 17. Dr Sudipta Banerjee (P.W.-13) treated Gurupada Pandit on the night of the incident at Singur Rural Hospital. He stated that he found the patient unconscious and although there was no external injury but the patient had internal head injury and the condition of the patient was very serious and hence he referred the patient to Calcutta Medical College for better treatment. Dr Banerjee further stated that according to the statements of the patient party there was a quarrel between two brothers over their family property during which the younger brother assaulted the patient with a wooden rod. 18. Shyamapada Pandit (P.W.- 19) is a brother of the deceased and the appellant. He stated that on the day of the incident there was a quarrel in between his brother Gurupada and Gurupada’s wife Sikha and their mother asked the appellant to settle the issue. After saying so, he was declared ‘Hostile’ by the prosecution. 19. Dr Harasit Sarkar (P.W.-20) performed P.M. Examination over the dead body of the deceased. 20. Abhranil Neogi (P.W.-15) was a Judicial Magistrate who recorded the statement of P.W.-1 under Section 164 Cr.P.C. 21. A.S.I., Samir Kumar Dey (P.W.-11) performed inquest over the dead body of the deceased. 22. S.I., Udoy Sankar Chatterjee (P.W.-16) registered the case at the Police Station. 23. S.I., Tushar Kanti Das (P.W.-17) started investigation of the case and S.I. Sagarmoy Garan (P.W.-18) completed the investigation and submitted charge-sheet in the case. 24. The appellant Rampada Pandit examined himself as D.W.-1. He stated that his elder brother Gurupada, i. e., the deceased was an alcoholic and his relation with his wife was never good. D.W.-1 stated further that on the day of the incident his elder brother, i. e., the deceased promised P.W.-1 to take her in Puja Pandals as it was the day of Astami of the Durgapuja. He stated that his elder brother Gurupada, i. e., the deceased was an alcoholic and his relation with his wife was never good. D.W.-1 stated further that on the day of the incident his elder brother, i. e., the deceased promised P.W.-1 to take her in Puja Pandals as it was the day of Astami of the Durgapuja. But, in the evening his elder brother returned home in drunken condition due to which his elder brother had an altercation with P.W.-1 and when he (D.W.-1) tried to pacify them as instructed by their mother his elder brother assaulted him with a bamboo stick and just after that assault, P.W.-1 had hit on the head of his elder brother due to which his elder brother sustained serious injury on the head and became unconscious. He further added that after such incidents his elder brother as well as he was taken to Singur Hospital where he remained admitted for one day and his elder brother was taken to different Hospitals and ultimately he was arrested by the police on the basis of false allegations raised against him by P.W.-1. Rampada’s wife Rama Pandit, also an accused in the case (acquitted by the Trial Court), supported her husband (D.W.-2). 25. So, admittedly the deceased Gurupada sustained serious injury on his head, which was ante mortem and homicidal in nature, according to the autopsy surgeon (P.W.-20) and the injury ultimately resulted in the death of Gurupada. Prosecution’s case is that the appellant assaulted Gurupada with a bamboo in their house in the evening of the incident, while defence alleges that the fatal blow on Gurupada was given not by the appellant but by the appellant’s wife, i. e., P.W.-1. 26. P.W.-1 stated that in the evening of the incident there was a quarrel between her husband and the appellant over the possession of a T.V.-table in their house and during such quarrel appellant became violent and assaulted on the head of her husband with a bamboo club due to which blood came out from the nose and mouth of her husband and her husband became unconscious instantly due to such assault. The members of the family were only present in the house at the time of the incident as found from the evidence of P.W.-1. But, excepting the wife of the deceased none was willing to support the wife of the deceased. The members of the family were only present in the house at the time of the incident as found from the evidence of P.W.-1. But, excepting the wife of the deceased none was willing to support the wife of the deceased. Be that as it may, P.W.-1 was cross examined at random but no inconsistency in her statements came out. 27. P.W.-13 examined and treated the deceased at Singur Rural Hospital on the very night of the incident. He stated that the patient was brought unconscious having internal head injury and that the ‘patient party’ informed that the patient was assaulted by his younger brother during a quarrel in the house. P.W.-19 in one place of his cross examination stated that the deceased was elder to the appellant. It is true that the doctor did not mention any specific name who had given such information but according to him Shyamapada Pandit a brother of the patient brought the patient in the Hospital. So, Shyamapada Pandit was definitely amongst the persons giving such information in the Hospital. So, the aforesaid facts lend strong support to the testimony of P.W.-1. 28. P.W.-9 is a quack doctor of the locality. He stated that in the evening of the incident he went to the house of P.W.-1 on call by her and found the husband of P.W.-1 lying in his mother’s lap with serious injuries on his head. He added further that he came to know from P.W.-1 that her husband was assaulted by the appellant. Had the P.W.-1 assaulted her husband as stated by the defence, she should have left the place immediately after the incident to save herself or she should have been asked to account for such behaviour by the members of the family present in the house during the incident and. P.W.-1 should have at least an emotional breakdown had she done such mischievous act. But none of the family members stated about any such fact. On the contrary, P.W.-9 who visited the house immediately after the incident found the appellant lying in the kitchen in the house although there was no injury in his body. The fact hints that the appellant might have some emotional reaction. It should be further noted that immediately after the incident P.W.-1 herself called the doctor and took all the follow-up steps for the medical treatment of her husband. 29. The fact hints that the appellant might have some emotional reaction. It should be further noted that immediately after the incident P.W.-1 herself called the doctor and took all the follow-up steps for the medical treatment of her husband. 29. From the evidence of P.W.- 17 who started the investigation, it is found that he seized a bamboo club from the house of the deceased on 23.10.2007 and prepared a seizure list. Exhibit – 2/3 was that seizure list. P.W.- 1 proved her signature on that seizure list (Exhibit-2) and she identified Mat. Exhibit- I to be the weapon of assault. The said weapon was shown to P.W.-13 who was the doctor of the first treatment of the deceased and P.W.- 13 opined that the injury found on the head of the deceased could have been caused by it. The medical evidence thus, supports the testimony of P.W.-1. During investigation P.W.-1 made a statement under Section 164 Cr.P.C. The facts stated during such statement by P.W.-1 is consistent with what P.W.-1 stated on oath during the trial. 30. Mr Ganguly tried to assail the prosecution case on a ground that the prosecution case has not been supported by any independent neighbour of the parties. The day of the incident was Astami of the Durga Puja and the incident took place in the evening inside the house of the parties. Moreover, it is not found from evidence of P.W.-1 that any of the neighbours came in the house of the parties during the incidents. So, the absence of any neighbour as a witness does not bear any serious consequence, at least in this case. 31. The incident took place in the evening of 19.10.2007 and the F.I.R. was submitted in the afternoon of 23.10.2007. So, the absence of any neighbour as a witness does not bear any serious consequence, at least in this case. 31. The incident took place in the evening of 19.10.2007 and the F.I.R. was submitted in the afternoon of 23.10.2007. Mr Ganguly argued that the explanation for such delay that since P.W.-1 was engaged and worried about the treatment of her husband she could not submit the F.I.R. promptly is not satisfactory as there were other members in the family who could have submitted the F.I.R. From the evidence of P.W.- 1 it is found that immediately after the incident her husband was taken at first to the local Hospital but as the local Hospital refused to admit her husband they had to take her husband to the Medical College and the admission of her husband was refused there also and hence her husband was taken to the Jain Hospital at Howrah. The fact has been supported by P.W.-8 in whose vehicle the deceased was thus moved from Hospital to Hospital. The deceased was in critical condition in the Hospital at Howrah where he had ultimately died. P.W.-1 in one place of her cross examination stated that she used to go to the Hospital from her father’s house which suggests that after the incident she did not get any help from her matrimonial home. She also stated that a ‘Salish’ was called in the village but no result came out as the appellant refused to attend such ‘Salish’. P.W.- 2 was a close relation of P.W.- 1 from her paternal side. P.W.-2 stated that he knew about the incident in the Hospital on the day following the night of the incident but, they did not lodge any complaint anywhere. So, the relations of P.W.-1 from her paternal side were also indifferent in the matter. The deceased was none but a brother-in-law of P.W.-1. In the circumstances described above it was surely very difficult for the P.W.-1 to take a decision whether to inform the police about the incident, or not and when her husband ultimately died P.W.-1 had nothing to lose further and hence she ultimately submitted the F.I.R. so, the delay behind the F.I.R. is very much natural and reasonable. 32. The weapon of assault identified by P.W.-1 (Mat. Exhibit-1) had not been labelled or sealed and not sent to F.S.L. for examination. 32. The weapon of assault identified by P.W.-1 (Mat. Exhibit-1) had not been labelled or sealed and not sent to F.S.L. for examination. Similarly, no blood stained wearing apparels of the deceased was sent to F.S.L. for examination. The omissions are some faults in the investigation as suggested by Mr Singh. The prosecution case does not fail as a whole just because of such omission on the part of the investigating officer. 33. Mr Ganguly emphatically argued that the defence could set up a very good alternative case regarding the assault on the deceased which had not been considered at all by the learned Trial Court. He further argued that the appellant also sustained injury in the same transaction and the prosecution failed to explain the reasons of such injury in the person of the appellant which is fatal for the prosecution. Mr Ganguly cited a decision reported in (2008) 2 SCC (Cri) 727, Babu Ram and Others- versus –State of Punjab on the point. 34. In reply, Mr Singh argued that injury, if any, found in the body of the accused is required to be explained by the prosecution only when the question of right of private defence is involved and he also cited the following decisions on the point 2012 (1) SCC (Cri) 454, Ranjitham- Versus –Basavaraj and others, 2009 AIR (SCW) 1182, Ranveer Singh- Versus –State of M.P. and 2008 NCC 681 , Narain Singh & Ors.- Versus –State of Haryana. 35. It is wrong to say that learned Trial Court totally ignored the defence case. Let it be seen now, what is the defence case? It was suggested by the defence to P.W.- 1 that in the evening of the incident her husband returned home in drunken condition due to which she quarrelled with her husband and there was a fight between herself and her husband. It was further suggested to P.W.-1 that when the appellant interfered in such quarrel at the instance of their mother the appellant also sustained injury after which she (P.W.-1) assaulted her husband with a wooden club. The mother of the appellant, i. e., P.W.- 12 resiled from her earlier statement to the I.O. and she was declared ‘Hostile’ by the prosecution. The mother of the appellant, i. e., P.W.- 12 resiled from her earlier statement to the I.O. and she was declared ‘Hostile’ by the prosecution. During her cross examination P.W.-12 stated that in the evening of the incident there was a quarrel between the deceased and his wife and she asked the appellant to pacify them and when the appellant tried to pacify them the deceased assaulted the appellant resulting in the fall of the appellant and thereafter P.W.-1 assaulted on the head of the deceased with the stick in hand of the deceased. The appellant Rampada Pandit and his wife Rama Pandit examined themselves as defence witnesses Nos. 1 and 2 and both of them stated the aforesaid facts. 36. Admittedly the appellant or nobody on his behalf submitted any complaint anywhere alleging the aforesaid facts. When asked as to why they did not do so the appellant’s mother, i. e., P.W.- 12 explained that they did not submit any complaint against P.W.-1 because of their sympathy towards P.W.-1. The appellant had not stated any such fact alleged by the defence before the doctor treating him as found from Exhibit-A or B. I.O. of the case, i. e., P.W.-17 during his cross examination by the defence stated that he did not enquire whether the deceased was assaulted by his wife, or not as he did not receive any such allegation. In fact, it was for the first time during the trial only that the defence picked up such an alibi. 37. Mr Ganguly argued that the defence is not required to prove the alibi beyond doubts and the prosecution has always to prove their case beyond all reasonable doubts irrespective of whether any alibi is proved by the defence or not. Mr Ganguly submitted a decision reported in (2014) 3 SCC (Cri) 380, Jumni and others- versus –State of Haryana on the point. 38. It is true that the standard of proof required to prove the prosecution’s case and the alibi, if any, by the defence are not the same and prosecution’s case has always to be proved beyond all doubts. But when the defence try to set up any specific case in support of the innocence of the accused, the defence has to at least probablise such a defence case and the failure of the defence in this regard definitely strengthens the prosecution’s case. 39. But when the defence try to set up any specific case in support of the innocence of the accused, the defence has to at least probablise such a defence case and the failure of the defence in this regard definitely strengthens the prosecution’s case. 39. It was only the appellant and his wife who stated that the deceased was assaulted by P.W.-1 resulting in the death of the deceased and their mother tried to support them. But the other evidence on record discussed earlier does not land such defence case anywhere. Appellant’s claim that P.W.-1 assaulted the deceased just because the deceased assaulted him, at its very face look to be quite improbable and absurd. 40. The probability of the appellant’s mother and brothers telling lie to save the appellant is a natural and logical choice. 41. As discussed earlier P.W.- 9 a quack doctor of the village visited the house of the appellant on call by P.W.-1 immediately after the incident. He stated that he found the deceased lying on his mother’s lap with serious injury and he found the appellant lying in the kitchen. He did not state about any injury found by him in the person of the appellant. 42. P.W.- 8 stated that after the incident he took Gurupada (deceased) and Rampada (appellant) to Singur Hospital on request by Shyamapada (brother) in his car. P.W.- 13 stated about the injury found by him on Gurupada only. However, during his cross examination he proved a discharge certificate and an outdoor ticket issued from Singur Hospital in the name of the appellant which was marked Exhibit- A and B for the defence. From those two documents it is found that the appellant was admitted in Singur Hospital for a few hours only although no injury is mentioned in those documents except an advice of a dressing ointment only. There is no other reliable evidence to show that the appellant sustained any injury in the evening of the incident. It should be further mentioned here that the appellant never picked up any case of exercise of his right of private defence also. So, the question of explaining the reason for injury in the body of the appellant does arise at all in this case. So, the decisions cited by the defence have no application in the case. 43. The prosecution’s case mainly stands upon the testimony of P.W.-1. So, the question of explaining the reason for injury in the body of the appellant does arise at all in this case. So, the decisions cited by the defence have no application in the case. 43. The prosecution’s case mainly stands upon the testimony of P.W.-1. Mr Ganguly argued that there can be conviction of an accused on the basis of a solitary witness only when the testimony of such solitary witness is completely free from blemish and he cited a decision reported in 2004 SCC (Cri) 100 Sadhu Ram and Another- Versus –State of Rajasthan on the point. In the present case there is no reason whatsoever to doubt into the credibility of P.W.-1 and having considered the facts and circumstances of the case and the evidence on record thereupon I have no hesitation to hold that the testimony of P.W.-1 is completely reliable. So, the decision cited by Mr Ganguly on the point does not come to any help to the appellant. 44. No other point has been raised by Mr Ganguly. 45. So, from what has been discussed above it is clear that the conviction of the appellant under Section 304- Part -II I.P.C. by the Trial Court is quite justified in law. 46. The appellant killed his elder brother and the appellant tried to take shelter under gross falsehood during trial. So, the punishment of Rigorous Imprisonment for seven years with fine of Rs. 2,000.00 (rupees two thousand only) is not disproportionate or unreasonable. I, therefore, find no reason to interfere with the judgment of the Trial Court. The appeal is, therefore, dismissed and the judgment and order of the Trial Court impugned in this appeal are affirmed. Appellant is directed to surrender before the Trial Court within a month to serve out the sentence. 47. The lower Court’s record be returned immediately along with a copy of the judgment and order. 48. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.