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2015 DIGILAW 835 (CAL)

Amiya Sarkar v. State of West Bengal

2015-10-01

ANIRUDDHA BOSE, SANKAR ACHARYYA

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Judgment : ANIRUDDHA BOSE, J.:- 1. On 21st April, 2004, one Swapan Sarkar was injured in an assault on his head and other parts of the body, and he eventually died on 24th April, 2004 at about 4.35 P.M in Nil Ratan Sarkar Medical College and Hospital (NRS) in Kolkata. The incident of assault is alleged to have taken place at Swarnakhali Bazar under Krishnaganj Police Station in the district of Nadia, in front of a shop of one Raju Das, who was earlier known to Swapan (the victim). Raju had reported the incident to police and subsequently deposed for prosecution as Prosecution Witness (PW) No. 1. Raju had complained that he was also injured by assault, along with the victim. Immediately after the incident of assault, the victim as also Raju were taken to Krishnaganj Hospital, which is a Primary Health Centre. Raju recieved first aid there and as per his evidence, he was released thereafter. The victim however was referred to Saktinagar Hospital, which we are apprised by the learned counsel of the appellant, is District Hospital of Nadia. He was thereafter transferred to the Nil Ratan Sarkar Medical College and Hospital (NRS) at Kolkata, where he succumbed to his injuries. The written complaint was lodged on 23rd April, 2004, and from the First Information Report (FIR), which is marked exhibit 6, lodged in the Krishnaganj Police Station, we find the time of receiving is recorded as 12.45 hours. The letter of complaint, which appears to have been written on the date of occurrence of the incident forms the basis of the formal FIR. The written complaint and the depositions of the witnesses reveal that the incident of assault was the result of a quarrel in which the victim, the PW 1, the accused-appellant Amiya Sarkar and one Subodh Biswas were involved over a goat sacrificed before the Goddess Kali on the night of 20th April, 2004. The “Kali puja” had taken place in the house of the elder sister of Raju, Smt. Dipu Bala. Said Dipu Bala and her husband Biswanath Bala have been examined as PW 5 and PW 12 respectively in course of trial and both of them in their depositions have confirmed the trouble, which, according to the prosecution occurred on 20th April, 2004. Said Dipu Bala and her husband Biswanath Bala have been examined as PW 5 and PW 12 respectively in course of trial and both of them in their depositions have confirmed the trouble, which, according to the prosecution occurred on 20th April, 2004. The PW 12, however, has stated in his examination-in-chief that the dispute had been resolved at the spot on the same night only. Raju, in his written complaint alleged that the accused and Subodh Biswas had committed the assault. So far as Subodh Biswas is concerned, we find from the judgment under appeal that the case against him was filed and he was not brought to trial. It was the appellant, Amiya Sarkar, who alone faced the trial. 2. The prosecution case is that in the evening of 21st April, 2004 when the victim was sitting with the PW 1 in front of the latter’s cloth store at Swarnakhali Bazar, the accused Amiya along with Subodh came in a bicycle to that spot, and Amiya had assaulted the victim with a piece of wood on his head from the rear. On the first strike itself, Swapan had lost his senses and fell down on the ground, after which Amiya struck two or three more blows on the body of Swapan. Thereafter, Raju had caught hold of Amiya, at which point of time Subodh hit Raju with a piece of wood. The accused persons had left the place of occurrence (P.O) without the cycle and the weapon of assault, being a piece of wood. After lodging of complaint two days later from the date of occurrence, the Investigating Officer, Pintu Sarkar, a Sub-Inspector of police who at the material point of time was posted at Krishnaganj Police Station as the Officer-in-charge, had taken up the investigation himself. He has deposed at the trial as PW 14. As per his deposition, on the date of lodging of complaint itself, he had visited the place of occurrence and seized one wooden piece as also one bicycle from a location in front of the shop room of Raju. The time of seizure, as per the seizure list marked exhibit 2 is “18.05-14-15 hours”. This, according to the prosecution implies that the exercise of seizure stretched over ten minutes, between 18.05 hours to 18.15 or 15 hours. 3. The time of seizure, as per the seizure list marked exhibit 2 is “18.05-14-15 hours”. This, according to the prosecution implies that the exercise of seizure stretched over ten minutes, between 18.05 hours to 18.15 or 15 hours. 3. In the FIR, at the stage of lodging of the same, offences under Sections 325/326/34 of the Indian Penal Code, 1860 (the IPC) have been specified. But after the death of the victim on 24th April, 2004, Section 304 of the IPC was added to the list of offences on the basis of which investigation had been conducted. The accused was apprehended on 29th April, 2004. Charge was framed under Section 325 and Part I of Section 304 of the IPC on 2nd September 2005, to which the accused-appellant pleaded not guilty. The case was registered as Sessions Trial No. II (IX) 05 in connection with Sessions Case No. 61 (4) 05. Upon Trial, the Additional Sessions Judge, 2nd Court, Nadia, found the appellant guilty of offence punishable under Section 304 Part I of the IPC and was found “not guilty” in relation to the offence under Section 325 IPC. On conviction under the aforesaid provision, he has been sentenced to undergo Rigorous Imprisonment for 10 years and to pay fine of Rs. 5,000/-, in default of which further simple imprisonment for one year has been mandated. 4. On behalf of the prosecution altogether sixteen witnesses have been examined whereas no one was placed by the defence as witness. Raju Das (PW 1), Indrajit Kirttonia (PW 2) nephew of the victim, Tapati Das, (PW 3) a sister of Raju, Bhulan Das, (PW 4) - brother of the deceased and Swapan Biswas (PW 10), a member of the N.V.F. have deposed as eye-witnesses to the incident of assault. Altogether four medical professionals have been examined, being Dr. Swapan Kumar Kar (PW 7), Dr. Samir Chowdhury (PW 9), Dr. Prabhas Chandra Chakraborty (PW 15) and Dr. Asit Baran Ghosh (PW 16) on behalf of the prosecution. The PW 7 had attended to the victim at Krishnaganj Hospital. The PW 9, at the material point of time was posted in the District Hospital and he had referred the victim to NRS Medical College and Hospital. Dr. Asit Baran Ghosh (PW 16) had examined the victim on 22nd April, 2004 at NRS Hospital, whereas PW 15 had undertaken the autopsy. The PW 9, at the material point of time was posted in the District Hospital and he had referred the victim to NRS Medical College and Hospital. Dr. Asit Baran Ghosh (PW 16) had examined the victim on 22nd April, 2004 at NRS Hospital, whereas PW 15 had undertaken the autopsy. Bipul Sarkar (PW 6) and Akhil Sarkar (PW 11), both brothers of the victim, Barun Das (PW 8), the scribe of the written complaint and one Sujit Mondal (PW 13) were also examined by the prosecution. The depositions of PWs 6, 11 and 13 mostly relate to obtaining information from other persons as regards the occurrence of the incident of assault and are in the nature of hearsay. The PW 1, PW 2, PW 3 and PW 4 have also deposed as seizure witnesses. 5. The post mortem report details the injuries under thirteen heads, though the reporting doctor appears to have overstepped one number and itemized fourteen injuries. These are:- “(1) One Abrasion 1” x 0.8” over medial side of right leg 2” above medial malleolus. (2) Two Abrasions, one 1” x ½”, over ½” x 0.3” placed one below other (larger one upper over the tendo achilis) of left leg, 3” above head. (4) Two abrasion each ½” x ½” in size placed one below another at back of left elbow. (5) One curved abrasion, concavity towards mid line 1” x ½” in size, with contusion 1” x ½” placed 0.4” right lateral to lateral angle of right eye, placed along the bony prominence of right orbital margin on lateral side. (6) One abrasion of 1” x 0.2” on right forehead ½”above medial 1/3 of right eyebrow. (7) One stiched up wound having stiches, 2.5” in length placed transversely over vault of skull, 4 1/2” above eyebrow and 0.8” of it is on right side of midline, rest 1.7” is on left of midline, the left end is 3.7” above upper border of left pinna. (8) One haemotoma 5” x 4” on right temporal to right parital eminence. (9) One Haemotoma of 4” x 2 2 ½ “ at mid vault of skull. (10) Extra vacation of blood over 2” x 2” adjoining wound number 7. (11) Suture fracture 2” in anterior part of sagittal suture. (12) fissure fracture 2” in length from underneath injury number 7 towards left temporal bone. (9) One Haemotoma of 4” x 2 2 ½ “ at mid vault of skull. (10) Extra vacation of blood over 2” x 2” adjoining wound number 7. (11) Suture fracture 2” in anterior part of sagittal suture. (12) fissure fracture 2” in length from underneath injury number 7 towards left temporal bone. (13) Extra Dural Haemorrhage of 6” x 4” over right parieto – temporal region. (14) Sub Dural Haemorrhage on left parital area 4” x 2” and over left occipital pole of 2” x 2”.(quoted verbatim) 6. It is recorded in the post mortem report that death of the victim was due to effect of such injuries, which have been described as ante mortem and homicidal in nature. The autopsy surgeon (PW 15) has proved the post mortem report which has been marked Exhibit 7. In course of his deposition, the autopsy surgeon has also stated that the injury referred to may be caused by assault on head with the help of wooden stick, which in bengali is often described as ‘chela kaath’. As regards the seriousness of the injuries, it is recorded in the deposition of PW 15 :- “This type of injury may be caused by assault on head with the help of wooden stick (chala kath) The injuries mentioned in point number 7 are the result of following injuries. On seeing the injury report, this witness stated that there is one grievous head injury and there is another injury on back side of the brain. Other points mentioned above are the result of that injury except abrasion” (quoted verbatim) 7. The defence version of the incident, as it appears from the tenor of cross-examination is that the victim tried to drag both the accused persons towards the bushes in the riverside to the south of the shoproom of the PW 1 by brandishing a pistol, for which the shopkeepers of the market had chased the PW 1, and in the ensuing scuffle the victim had fallen down in the bush resulting in the injuries. In this regard, there is evidence of PW 16 to the effect that the lacerated injury may be caused if any person suddenly falls on any particular track or bush. In this regard, there is evidence of PW 16 to the effect that the lacerated injury may be caused if any person suddenly falls on any particular track or bush. The other flaws in the prosecution case which are sought to be highlighted by the defence are delay in lodging of the complaint, failure to conduct forensic test in respect of the assault weapon and there being no independent local witness to support the prosecution case. The weapon of assault was also not shown to any of the doctors in spite of the same being made material exhibit. 8. The factum of death of the victim and the cause of death, being physical injuries, go undisputed. It is also established from the evidence of the autopsy surgeon that such injury could be caused by a wooden stick. From the time of occurrence of the incident, movements of the injured victim follow a link and are all corroborated by the deposing medical practitioners of the three hospitals where the victim was taken to. The reason for delay in lodging the FIR has been explained by the PW 1 in his examination-in-chief. He has stated that he was busy for treatment of the victim. We do not find this explanation to be unacceptable as the injured victim had to be taken to three hospitals in three days. Not lodging of FIR on the day of occurrence of the incident in spite of proximity of the Krishnaganj Police Station to the Krishnaganj hospital by itself cannot lead to any adverse inference in the given factual situation, so far as the prosecution case is concerned. The condition of the victim at that time was serious and it is natural that treatment of the victim was the high priority for the persons who were carrying him from hospital to hospital. As regards the physical position of the place the occurrence, as reflected in the rough sketch map made by the Investigating Officer and marked Exhibit 5, matches with the description of the prosecution witnesses made in their depositions. The description of the location of the place of occurrence appears from the depositions of the PW 1, PW 2, PW 3 and PW 4. All of them have stated that the offending act took place in front of the shoproom. The description of the location of the place of occurrence appears from the depositions of the PW 1, PW 2, PW 3 and PW 4. All of them have stated that the offending act took place in front of the shoproom. In the written complaint, it has been stated that at the time of occurrence, being 6 P.M. the FIR maker Raju (PW 1) was working in his shop with his friend Swapan Sarkar, the victim. On behalf of the appellant it was pointed out that there is an element of inconsistency between the facts stated in the written complaint and the deposition of the prosecution witnesses in that the PW 1 has stated in his examination-in-chief that the victim Swapan was sitting and he was standing at the point of time when the assault took place. The discrepancy, if any, is in describing what the PW 1 and the deceased were actually doing at that stage – whether they were working in the shop or standing in front of the shop. This discrepancy in our opinion is a very minor one. A written complaint reporting an offence for the first time cannot be expected to describe the commission of an offence in graphic details. 9. A relatively greater degree of discrepancy is in relation to the date of writing the complaint. The scribe, PW 8, in his examination-in-chief has stated that it was written at the police station. No question as regards the date on which it was written was put to him. A reading of the complaint itself gives the indication that it was written on the day of occurrence of the incident itself. The complaint, translated in English, (at page 2 of the paperbook) reads;- “Sir, My humble submission is that I am Shri Raju Das, S/O Sri Hatipada Das is a permanent resident in the village of Swarnakhali. Yesterday (Tuesday), on 20.4.04, the Kalipuja was held in the house of my elder sister. A pathaboli was arranged regarding the Kalipuja. There was a quarrel, as regards to pathaboli, in between Amiya Sarkar, S/O Ashok Sarkar of our locality and me. Thereafter, our superiors settled up the quarrel. But, today (21.04.2004) at about 6 P.M. in the evening, I was working in my own shop with my friend, Swapan Sarkar, S/O Late Dulal Chandra Sarkar. There was a quarrel, as regards to pathaboli, in between Amiya Sarkar, S/O Ashok Sarkar of our locality and me. Thereafter, our superiors settled up the quarrel. But, today (21.04.2004) at about 6 P.M. in the evening, I was working in my own shop with my friend, Swapan Sarkar, S/O Late Dulal Chandra Sarkar. Then Amiya Sarkar came there from back side and struck twice on the head of Swapan with a piece of wood and Swapan fell down on the ground sustained bleeding injury. Thereafter, he caught hold me and Subodh Biswas, S/O Ratnpada Biswas assaulted on my head and back with a piece of wood. Then people of the bazar rushed to the P.O. and we were taken to hospital. At present Swapan Sarkar is in crisis condition and the B.M.O. referred Swapan Sarkar to Krishnagar District Hospital. Therefore, I would request that kindly take appropriate steps for punishment of the accused persons after proper investigation.” 10. Had it been a case where an accused is sought to be convicted on the basis of circumstantial evidence, this discrepancy may have had become a significant factor in determining the question of guilt of the accused. But the prosecution in this case has primarily relied on eyewitness account to establish the guilt of the accused. The defence has not disputed the date of lodging of the FIR, being 23rd April, 2004. No suggestion was put to the PW 1, the maker of the FIR or the PW 8, the scribe as regards falsity of the date of lodging of the FIR. In such circumstances, the ante dating of the written complaint to the day of occurrence can imply at best (from the defence perspective), that the same was written on the day of occurrence, but was lodged at a later date. In such a situation we would have to disbelieve the part of the deposition of PW 8, where he has stated that the complaint was written at the police station. But even if we disbelieve him, that would not demolish the prosecution case altogether. The reason why we make this observation is that this is a case where conviction is primarily sought on the basis of evidence of eyewitnesses, as we have already observed. But even if we disbelieve him, that would not demolish the prosecution case altogether. The reason why we make this observation is that this is a case where conviction is primarily sought on the basis of evidence of eyewitnesses, as we have already observed. The fact that the assault weapon was not shown to any of the deposing doctors also does not weaken the prosecution case to a great degree for the same reason. We shall, of course, have to test the quality of the evidence given by the eyewitnesses. 11. Before we undertake the exercise of analyzing the evidence of the prosecution witnesses who claim to have seen the occurrence of the act of assault, we would refer to another aspect of the case which could constitute discrepancy or shortcoming of the prosecution case. The victim in this case was in semi-conscious state and his inability to name his assailants is acceptable. The PW 1 in his cross-examination stated that he had told the doctors at the time of treatment the names of the accused persons. The patient records of the Krishnaganj Hospital and the District Hospital, which are Exhibits 3 and 4, do not contain or refer to the names of the assailants. The two doctors, PW 7 and PW 9 who attended the victim at these hospitals in their evidence also did not specify the assailants, but no suggestion on this count was put to them on behalf of defence. They were not confronted with the version of the PW 1 that he had named the assailants at the time of treatment. PW 16, who was the attending doctor at NRS hospital in his examination-in-chief has stated the names of the appellant and Subodh Sarkar to be the assailants, as named by the “patient party”. In this factual background, we find no reason to disbelieve the part of the deposition of the PW 1, where he has stated that he had named the assailants to the treating doctor. Naming the appellant as an assailant cannot be dismissed as an afterthought. 12. We shall now turn to the evidence of PW 1, PW 2, PW 3, PW 4 and PW 10, all of whom have stated in their depositions that they had seen the commission of the offence. PW 2, PW 3 and PW 4 have identified the appellant on the dock. 12. We shall now turn to the evidence of PW 1, PW 2, PW 3, PW 4 and PW 10, all of whom have stated in their depositions that they had seen the commission of the offence. PW 2, PW 3 and PW 4 have identified the appellant on the dock. These prosecution witnesses gave a uniform view of occurrence of the incident implicating the appellant for having committed the act of assault. PW 10, a member of the N.V.F., who stated that he had rushed to the spot when the assault started has also given evidence in the same line. None of them has resiled from their version of occurrence in cross-examination. The only discrepancy may be in the evidence of PW 4, who has stated in his examination-in-chief that Raju (PW 1) was inside the shop at the time of occurrence of the incident whereas the PW 1 has stated that he was standing in front of the shop. PW 2 and PW 4 have stated that at the time of occurrence of the incident, the former was passing by the shop of Raju while the latter had come to that shop. It is true that no independent shopkeeper or other neutral person has come as a witness, and barring the I.O., the doctors and the member of the N.V.F., all other witnesses were connected to the PW 1 or the victim. But for this reason alone, the prosecution case cannot be disbelieved, as the version of the eyewitnesses on the whole give a uniform and consistent version of the incident of assault. 13. We are satisfied with the reasoning given by the Trial Judge sustaining the prosecution case. The Trial Judge has also awarded minimum sentence under the first part of Section 304 of the IPC to the appellant. Thus there is no scope of interfering with the sentence. The impugned judgment and order is accordingly sustained. 14. The appeal is dismissed. 15. Urgent Photostat certified copy of this order be given to the parties expeditiously, if applied for.