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2015 DIGILAW 747 (CAL)

Bappa Malik v. State of West Bengal

2015-09-04

INDRAJIT CHATTERJEE

body2015
JUDGMENT : This appeal is against the judgment and order of conviction dated 25-09-2013 and 27-09-2013 respectively passed by the then Additional District & Sessions Judge, Fast Track, Court No.II, Hooghly in Sessions Trial Case No. 01/11 arising out of Sessions Case No. 220/11 in which the said learned trial court was pleased to convict the present appellant in respect of the charge punishable under section 304 of the Indian Penal Code (hereinafter called as the Code) and the present appellant was sentenced to suffer R. I. for seven years and to pay fine of Rs.5000/- i.d., R.I. for one year in respect of the offence punishable under Section 304 and in respect of the charge under Section 448 of the Indian Penal Code the learned trial court was pleased to clamp a sentence of fine to the tune of Rs.500/- i.d., to suffer S.I. for a month. The case before the trial court can be summarized thus : That one FIR was lodged by Ram Bachan Das giving rise to Polba P.S. Case No. 13/11 dated 11-2-11 under Sections 447 and 304 of the Indian Penal Code. The FIR was received by the said police station at 10.05 hours on 11.2.2011. In that FIR, it was alleged that on the previous day (10-2-2011) at 8-30 p.m. the father of the de facto complainant was sleeping on a 'Choki' at the Verandah of his house. The incident took place at about 1-00 a.m. on 11-2-2011 (as per the English Calendar) when the present appellant entered into the house and due to previous grudge started assaulting the victim, Ram Briz Das. The victim raised hue and cry and that attracted the de facto complainant, his other brothers and their wives. 2. They woke up and tried to apprehend the appellant. During such chase, the appellant suddenly failed down and received injuries on his nose and face and also on other portion of his body but somehow he managed to escape. Thereafter, the victim was taken to Polba PHC but considering the complaint of victim as to chest pain, he was referred to Chinsurah District Hospital. The victim ultimately died. There was post-mortem examination on the dead body of the victim as per Polba P.S.U.D. Case No.06/11 dated 11.02.11. There was also inquest examination on the dead body of the victim in that U.D. case. The victim ultimately died. There was post-mortem examination on the dead body of the victim as per Polba P.S.U.D. Case No.06/11 dated 11.02.11. There was also inquest examination on the dead body of the victim in that U.D. case. I have already stated at what time the FIR was lodged. 3. After the registration of the case, the investigation was taken up by S.I. Gour Chandra Sarkar of the said police station. During the investigation, he seized some articles from the house of the victim as per the seizure list dated 11.2.2011 including one torch light allegedly belonging to the present appellant which he left behind. The torch was produced before the court and was marked as material Ext. II. The Investigating Officer of this case also prepared a sketch map with index (Ext.8), collected the carbon copy of the post-mortem report (Ext.7) and gave in Zimma of the articles seized as per that seizure list except the torch light as per Zimmanama dated 11.2.2011. The viscera of the victim was sent to FSL through the Chief Judicial Magistrate, Hooghly and the FSL report was collected (Ext.11) wherein it was reported that no poison could be detected. The Investigating Officer of this case after investigation submitted charge-sheet against the accused for the offence punishable under Sections 448/304 of the Code. The accused pleaded not guilty in respect of the said charge and claimed to be tried. On behalf of the prosecution as many as 19 witnesses were examined and several documents were marked, the vital being FIR, inquest report, post-mortem report, rough sketch map, FSL report etc. The wearing apparel of the victim was also produced before the learned trial court which was marked as material Ext.I and that torch light also produced which was marked as material Ext.II. On behalf of the defence no witness was produced either documentary or oral. The defence took up the plea of false implication. It was the specific case of the defence that the victim died due to heart attack after he fell down from the cot. The accused could be arrested on the very date of lodging of the F.I.R. with injuries on his nose. 4. At time of hearing of the argument, learned defence counsel, Mr. Ganguly, argued that actually the prosecution had miserably failed to prove that the death of the victim was caused by the present accused. The accused could be arrested on the very date of lodging of the F.I.R. with injuries on his nose. 4. At time of hearing of the argument, learned defence counsel, Mr. Ganguly, argued that actually the prosecution had miserably failed to prove that the death of the victim was caused by the present accused. He took me to the post-mortem report to show that the doctor did not make any specific opinion as to the cause of death and the post-mortem report is based on presumption. He also took me to the evidence of P.W.7 and P.W.18 to convince this court that culpable homicide was not at all proved by the prosecution. He also took me to the evidence of other witnesses, i.e., the sons of the victim, their wives, the widow of the victim and the police personnel etc. He also relied upon the decision of the Apex Court as reported in (2008) 3 SCC (Cri) 39, ( AIR 2008 SC 2205 ) (Dinesh Borthakur v. State of Assam) at pages 45 and 46 of the judgment wherein the Apex Court doubted the homicidal death of the victim. 5. Ms. Faria Hossain, learned Advocate, appearing for the State tried to convince this court that the death of the victim was homicidal in nature and the prosecution could prove that accused had entered into the house of the victim party on that dead of night. She also took me to the evidence of the eye-witnesses to show that the victim was assaulted by this accused resulting in his death. 6. It is true that P.Ws. 1 to 5 were the sons of the victim, P.W.11 was his widow and P.Ws. 13 and 14 were the daughters-in-law of the victim. They tried to prove that this accused after entering into their house had assaulted the victim on his chest and that was the reason of the death of the victim. The doctor to whom the victim was first taken deposed as P.W.15 who deposed that the victim had chest pain. But some sons of the victim candidly deposed that the victim died when he was taken to Polba PHC. 7. This court is not unmindful of Ext. The doctor to whom the victim was first taken deposed as P.W.15 who deposed that the victim had chest pain. But some sons of the victim candidly deposed that the victim died when he was taken to Polba PHC. 7. This court is not unmindful of Ext. 4, i.e., the dead body challan which shows that the dead body was lying on the mat of the courtyard of the house of the victim at Sangrampur More, P.S. Polba when he received the dead body at 11-45 hours on 11.2.2011. This shows that the victim was taken to Polba PHC and as per the evidence of the eye-witnesses who were none else but the sons of the victim deposed that the victim died when she was taken to hospital. The evidence of P.W.15 is worth no reliance, as she did not depose from any document. She being a public servant cannot depose from her memory (unless it was something memorable) regarding any duty which she performed publicly. She did not sign on any referral card showing that the victim was referred to the hospital. The evidence of the P.Ws. are, however, convincing that this accused trespassed into the house of the victim. There might have some jostling but that did not lead to the death of the victim. The cardiac arrest cannot be attributed to this act of the accused. I have already told regarding the evasive post-mortem report and the evidence of the medical expert. 8. The trial court ought to have framed charge against the accused under Section 457, alternatively under Section 459 of the I.P.C. but it preferred to frame charge on a much lesser offence, even though it was very much in the police papers that the offence was committed at dead of night. No rule was issued for enhancement of sentence or alteration of sentence from Section 448 to at least Section 457 of the Code. 9. Be that as it may, this court is convinced that the order of conviction passed by the learned trial court in respect of the charge under Section 304 of the Code cannot sustain and as such, the appellant accused is fit to be acquitted in respect of that charge and I do that and as such, the conviction under Section 304 of the Code is set aside. 10. 10. Regarding the charge under Section 448 of the Code, this court is satisfied that the said charge was duly brought home by the prosecution before the learned trial court and as such, he was rightly convicted in respect of the said charge. Conviction in respect of that Section is, however, upheld. 11. Thus, this appeal succeeds in part. The accused is in custody since 25th September, 2013 and he may be released forthwith if the fine amount of Rs.500/-is paid and he is not wanted in any other case. 12. I make it clear that this appellant accused cannot claim set off under Section 428 of the Code as regards the default clause in case of non-payment of fine. 13. Department is directed to communicate the ordering portion of this judgment to the Superintendent of Presidency Correctional Home by special messenger. 14. Department will also forward a copy of this judgment along with the Lower Court Records to the learned trial court forthwith. 15. Certified copy be supplied to the parties, as per rules, if prayed for. Appeal partly allowed.