Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 863 (CAL)

Dinesh Kumar v. State of West Bengal

2015-10-08

INDRAJIT CHATTERJEE

body2015
JUDGMENT Indrajit Chatterjee, J. This court is hearing this appeal as against the judgment and order of conviction respectively dated 15-05-2013 and 16-05-2013 passed by the learned Additional District & Sessions Judge, Nabadwip, Nadia, in Sessions Trial No. XIIA (8) 2011 arising out of Sessions Case No. 91 (4) 2011 wherein the present appellant was convicted in respect of the charge under Sections 304 Part-II of the Indian Penal Code (herein after called as IPC) and the present appellant was sentenced to suffer rigorous imprisonment for five years and he was also directed to pay fine of Rs.1000/-, i.d., to suffer further rigorous imprisonment for a period of three months. The trial court ordered that the accused/convict was entitled to get the set off under Section 428 of the Code of Criminal Procedure. The accused appellant was however acquitted in respect of the charge under Section 279 of the IPC. The fact revealed before the trial court can be stated in brief thus:-That one F.I.R. was lodged by one Sujit Dewan, Assistant Sub-Inspector of Police, Nabadwip Police Station, District – Nadia with the Inspector-in-Charge of the said police station alleging, inter alia, that on 17-07-2010, this de facto complainant was in night patrol duty and he was accompanied by Constable No.1054, Udit Santra, Constable No. 417, Kamal Sen, Constable No.368, Rai Kinkar Biswas, Home Guard No.1108, Ashok Adhikari and police driver, 533 Gadadhar Mondal (they are all the PWs in this case). At about 10-35 hours, such raiding party received one direction from S.I., Joy Chatterjee of that police station to go to Madhaipur Pheri Ghat and on receipt of that information, the driver of the police van was trying to change the direction of the vehicle near “Gouranga Setu”. Constable no. 368, Rai Kinkar Biswas, the victim of this case came out of the police vehicle to help the police driver for that purpose with a flashing torch light and at that time, one truck bearing no.UP-71B – 7341 came there at a high speed and the driver of the said vehicle was running the vehicle in a rash and negligent manner. The said truck was coming from Krishnanagar side and was going to Nabadwip side. The said truck was coming from Krishnanagar side and was going to Nabadwip side. It was further alleged in the F.I.R. that the truck driver could very well see that the police patrol duty was there and the said constable trying to attract the driver by raising his hands and flashing the torch light but still the truck driver did not stop the vehicle and dashed the said constable, Rai Kinkar Biswas. The victim was taken to Nabadwip hospital and from there, he was shifted to Shaktinagar hospital and when the F.I.R. was lodged, he was in Shaktinagar hospital. The said victim ultimately died on 20th July, 2010 at 9:40 p.m. at SSKM Hospital where he was shifted in the night of 18.07.2010. On receipt of the F.I.R. at 09:35 hours on 18th July, 2010 Nabadwip P.S. Case No. 182 of 2010 dated 18/07/2010 was started under Sections 279/326 of the Indian Penal Code. The investigation was taken up by S.I. Joy Chatterjee of that police station. One prayer was made for adding Section 304 of the Indian Penal Code on 23rd July, 2010 after the death of victim and that prayer of the Investigating Officer was allowed. During the course of investigation, the Investigating Officer seized that truck, there was inquest examination on the dead body of the victim by one officer of Kolkata Police and there was also mechanical test of the vehicle on 05-08-2010, but the vehicle was found to be in order. The vehicle was located at the place of occurrence and the driver was arrested soon thereafter within two hours of the incident as claimed by one PW, but as per memo of arrest, the driver was apprehended on 19-07-2010 at 08:05 hrs and he was forwarded to court on the same day. I have already told that the victim ultimately died. There was post-mortem examination on the dead body of the victim and the doctor opined that the death was due to several injuries as noted in the post-mortem report. The Investigating Officer of the case also prepared a sketch map of the place of occurrence. The vehicle was seized as per the seizure list dated 19-07-2010 at 08-08 hours as produced by the driver of the vehicle, i.e. the present appellant facing trial. The Investigating Officer of the case also prepared a sketch map of the place of occurrence. The vehicle was seized as per the seizure list dated 19-07-2010 at 08-08 hours as produced by the driver of the vehicle, i.e. the present appellant facing trial. The Investigating Officer after conclusion of investigation submitted charge sheet for the offence punishable under Sections 279/304 of the Indian Penal Code. The case was committed to the court of sessions and Sessions Case No. 91(4)2011 was registered. The case was transferred to the trial court and Sessions Trial No. XIIA(8)2011 was registered. During the course of trial, the prosecution examined as many as 12 witnesses, the prosecution also relied upon several documentary evidence which were marked as Exhibits being written complaint, inquest report, M.V.I. report, formal F.I.R., F.I.R., seizure list, rough sketch map with index, medical paper including death certificate, injury report and the postmortem report. The accused was examined under Section 313 of the Code of Criminal Procedure wherein claimed that at the time of the incident he was very much there at the place of occurrence but he claimed that the police personnel were teasing him at that time and they were using filthy languages which enraged him. He further admitted that he was driving the vehicle slowly near the Toll Gate on that night, he further claimed that he was driving the truck being truck no. UP-71B-7341 but at the same time claimed that the police man was run over by some other vehicle. This accused, however, claimed that he was falsely implicated in this case. The defence preferred not to adduce any oral or documentary evidence. On behalf of the defence, Mr. Atanu Biswas, learned Advocate submitted that even though, as per the prosecution, the incident took place on 17.7.2010 at about 10:35 hrs. but the F.I.R. was lodged on 18.7.2010 at 9:35 a.m. that is after a gap of roughly 12 hours even though the Nabadwip Police Station was about 3 km. distance from the place of incident. He further submitted that in the F.I.R., there is no mention why there was such delay in lodging of the F.I.R. He further submitted by taking me to the seizure list Exhibit.2 that the accused-appellant produced the documents and the truck which was seized and as per the arrest memo the accused was arrested on 19.7.2010 at 08.05 hrs. He further submitted that in the F.I.R., there is no mention why there was such delay in lodging of the F.I.R. He further submitted by taking me to the seizure list Exhibit.2 that the accused-appellant produced the documents and the truck which was seized and as per the arrest memo the accused was arrested on 19.7.2010 at 08.05 hrs. By this he tried to convince this Court that there was enough of doubt which one man of ordinary prudence can express regarding the genuinity of the claim of the prosecution. He submitted as regards the answer given to question No.4 when the accused was examined under Section 313 Cr.P.C. that the answer relates to post incident occurrence and naturally not before the incident. He also submitted that it was the positive claim of the accused that some other vehicle knocked down the victim but he was falsely implicated in this case. Learned Counsel also submitted regarding the language problem of the accused as he is one resident of Uttar Pradesh, one Hindi knowing person. He submitted that answers given by one accused under Section Cr.P.C. cannot be enough to secure the conviction of the accused unless there is some convincing corroborative evidence. It was also argued by Mr. Biswas that as per evidence of P.W.5, Constable Kamal Kumar Sen, that the accused was arrested within two hours of the incident. He took me to the evidence of P.W.12 i.e., I.O. of this case to show that the I.O. claimed that the accused surrendered before Court. He took me to the forwarding report of the accused dated 19.7.2010 to say that accused was arrested and not forwarded to Court. Learned counsel also submitted that one doctor namely, Partha Sarathi Ghosh of Nabadwip State General Hospital was cited as P.W. in the charge-sheet but he was not examined and naturally, the report of the said doctor was also not marked as exhibit. He frankly submitted that this Court cannot look into that document and there was lapse on the part of the defence to get the said document marked as exhibit by examining the said doctor as D.W. He further submitted that P.W.1 i.e., F.I.R. maker could not identify the accused driver on dock. He frankly submitted that this Court cannot look into that document and there was lapse on the part of the defence to get the said document marked as exhibit by examining the said doctor as D.W. He further submitted that P.W.1 i.e., F.I.R. maker could not identify the accused driver on dock. It was also argued by him that why the F.I.R. is silent as to what happened to the driver in between the time of the accident and the lodging of the F.I.R. He also took me to Exhibit.8, i.e., one medical report of the victim Rai Kinkar Biswas who was attended by the doctor of S.S.K.M. Hospital on 18.7.2010 at 9.04 p.m. to convince this Court that as per that exhibit no number of the vehicle was told to the doctor and as per Column 7 of the said report the accident took place on 18.7.2010 at 2.30 a.m. which is contrary to the claim of the prosecution story that the incident took place on 17.7.2010 at 10.35 p.m. He also took me to the judgment of the learned Trial Court that the learned Trial Court acquitted the accused in respect of the charge under Section 279 of the I.P.C. on the ground that the witnesses varied regarding the speed of the vehicle at the material point of time and that there was one speed breaker just in front of the Toll Gate and naturally the speed of the vehicle was in between 5 km. to 7 km. as deposed by the witnesses. Learned counsel also took me to the internal page No.30 of the judgment to convince this Court that the judgment is totally contrary to the F.I.R. as the Court held that the accused was annoyed with the police party and provoked him to commit the crime. He further submitted that answers given by the accused under Section 313 Cr.P.C. must be taken as a whole. He further submitted that the evidence of the P.W.s’ varied in between themselves as regards the place of occurrence as some deposed that the incident took place before 10 feet of the speed breaker and some deposed that the accident took place after crossing the speed breaker. He also took me to the sketch map prepared by the I.O. to say that even the evidence of the I.O. is contrary to the sketch map. He also took me to the sketch map prepared by the I.O. to say that even the evidence of the I.O. is contrary to the sketch map. He submitted that as per the sketch map the P.O. is near the Toll Gate of ‘Gouranga Setu’ on Nabadwip Krishnanagar Road. He further submitted that if the sketch map is believed then the incident took place only after crossing the speed breaker and the Toll Gate which is not the consistent version of the P.W.s’. He took me to the evidence of the P.W.2 that is the only independent witness regarding place of incident to convince this Court that the police van crossed the Toll Gate and 10 feet before the bumper, one police Constable got down from the police van and started giving signal for running vehicles and at that time he and others heard a noise and saw that one person was lying injured on the road and one truck bearing number UP 7341 was standing in front of the injured. He also submitted that this witness deposed in his cross-examination that two or four vehicles stopped on the road seeing the accident. At the time of hearing of argument on behalf of the prosecution Mr. Anand Keshari, learned advocate appearing on behalf of the State submitted by taking me to section 304 Part II of the IPC to convince this Court that if the act which the accused did on that fateful date is considered, then the court may come to this conclusion that the accused had the knowledge that the act which he was going to do so was likely to cause death. He further submitted that in such a case intention to cause death or to cause such bodily injury as is likely to cause death are of no importance while convicting one person in respect of the charge punishment under section 304 Part II of the IPC. He candidly submitted that when the trial court acquitted the accused in respect of the charge under section 279 IPC, it is now settled so far as this case is concerned that there was no rash and negligence act on the part of the accused driver. He candidly submitted that when the trial court acquitted the accused in respect of the charge under section 279 IPC, it is now settled so far as this case is concerned that there was no rash and negligence act on the part of the accused driver. He took me to the evidence of PWs 5, 6 and 7 to convince this court that at least those witnesses who were in the night petrol duty saw the accused driver to flee away from the scene of the crime and they duly identified the accused on dock. Regarding the argument of the defence on the point of identification, it was submitted that the identification in court vis a vis the admission on the part of the accused while answering question no. 4 in 313 Cr.P.C is enough to prove that this accused was driving the vehicle at that material point of time. Mr. Keshari frankly submitted that there was delay in lodging the FIR for about just less than 10 hours but at the same time the court may consider that the police party was busy regarding the treatment of the victim who had to be admitted at SSKM Hospital on the next date on 18th July 2010 at 2.30 p.m. He also admitted that there is some grey area regarding arrest of the accused i.e. from where he was arrested or at what time he was arrested. He took me to the forwarding report and the memo of arrest of the accused to say that actually the accused was arrested on 19th July 2010 at 08.05 hours. He submitted that evidence of the I.O that the accused surrendered in Court is not matching with the other documents like the forwarding report and the order sheet of the learned Judicial Magistrate, Nabawadip. On this point he submitted that this point was rightly answered by the learned trial court. He submitted that it is true that no GD entry was produced by the prosecution to prove that the police personnel were in night petrol duty but at the time he submitted that it makes no difference whether the police party was in night petrol duty or not particularly, when the positive defence story was that the victim was hit by some other vehicle. He reported that in this case the death of the victim is admitted and the question is whether the accused appellant may be held responsible for this unnatural death of the victim. He took me to the post mortem report to show that at least the injury nos.6, 7, 8 and 9 were the vital injuries which resulted in the death of the victim. He took me to the evidence of PWs 1, 4-6 to show that all those police personnel were in a Tata Sumo vehicle and when the vehicle had to take a turn because of urgent direction given by one SI Joy Chatterjee (PW-12) and the victim was signaling the other vehicles regarding such turning of the police vehicle and this incident happened. He admitted that at the time of the accident the vehicle was running at a very low speed i.e. roughly 5 or 7 km/h. and that even the victim was flashing the torch light to attract other vehicles so that no untoward incident may happen. He submitted to visualize the circumstances as depicted by the PWs that it was due to the act of the accused that the victim suffered such injuries resulting in his death. He submitted that vehicle was a 10-wheeler truck and naturally the driver of the vehicle should have been more careful in handling the vehicle in such a situation. He admitted that the story of teasing of the driver did not come out through the evidence of the PWs and it only came out from the statement of the accused when he was examined under section 313 of the Cr.P.C (answer to question no. 4) and as such, this story which came out from the mouth of the accused cannot be treated as the prosecution case. He submitted that the defence claimed that it was the act of some other vehicle and the present accused had apprehended on that score putting the claim on the driver of the vehicle in question. He specifically submitted that the incident occurred definitely after the bumpers/speed breaker and the toll gate. He took me to the sketch map to substantiate his argument. He admitted that the truck was coming from Krishnagar side and the police vehicle was coming from Nabawdip. He specifically submitted that the incident occurred definitely after the bumpers/speed breaker and the toll gate. He took me to the sketch map to substantiate his argument. He admitted that the truck was coming from Krishnagar side and the police vehicle was coming from Nabawdip. He admitted that there are some discrepancies in between the evidence of the PWs but these discrepancies are not vital or fatal discrepancies to take out the air from the sail of the prosecution boat. Regarding the argument of the defence as regards the shifting of the PO and contradictions in between the witnesses, Mr. Keshari submitted that all these are not fatal. He took me to the evidence of PW 2 to say that he was the cashier of the toll tax and the incident took place at about 10.30 p.m and naturally it is in doubt as to whether this PW-2 can be termed as an eye witness. He submitted that PW 2 can at best be termed as a post occurrence witness. He submitted that this witness deposed that the heard the noise and saw that one person was lying injured on the road and one truck bearing no. U.P. 7341 was standing in front of the injured. By this he tried to suggest that this witness came out from the room of the toll tax only after hearing this noise and he cannot be an eye witness. As regards the evidence of PW 3 being declared hostile the defence cannot encash through his evidence. It took me to the evidence of PW 3 to say that the accident occurred at a distance away from the bridge side after crossing the bumper. Regarding discrepancies to the seizure of the vehicle or the paper, it is submitted by Mr. Keshari that all these are not very fatal for the prosecution and also not vital for the proper decision of this case. Thus he submitted that the trial court rightly convicting the present appellant in respect of the charge under Section 304 Part II of the IPC considering the evidence of the PWs and relying on the statement of the accused. Thus he submitted that the trial court rightly convicting the present appellant in respect of the charge under Section 304 Part II of the IPC considering the evidence of the PWs and relying on the statement of the accused. He submitted that even if there is any defect in recording the statement of the accused under Section 313 of the Cr.P.C that is not enough to acquit the accused in respect of the charge unless it is shown that serious prejudice was caused to the defence by such defective examination. In reply it was submitted by Mr. Biswas defending the accused appellant that to attract Section 304 Part II of the IPC there must be one culpable homicide and that the prosecution must prove that the circumstances was covered under any exception to Section 300 of the IPC. It was further submitted by the learned counsel that the accused remained in custody for about 21 months during the trial and post-trial period. It was further submitted by the learned counsel that in the meantime, the accused appellant has lost his wife. He has son and two daughters and there will be none to look after them and in the year 2013 the age of the accused was 35 years. Let me now answer legal points raised by the parties in this appeal. I have stated in details what has come out from the prosecution story as well as the argument advanced by the parties. In any criminal trial the fact is relevant in arriving at a conclusion. Here in the instant case, it was alleged by the prosecution that the victim was signaling by using a torch asking the other vehicles to pay attention that the police vehicle was to take one turn and at that point of time this incident happened. It is also clear that the truck was one 10-wheeler vehicle and naturally it was a heavy vehicle. It is also apparent from the evidence that at the place of occurrence there being at least three speed breakers to check the speed of the vehicles at that point of time the speed of the vehicle was less than 5 or 7 km/h. It is needless to say that the accused being the driver of such a heavy vehicle must be cautious regarding the heavy duty cast on him in driving such a vehicle. The question to be decided by this Court is whether the act of the accused as claimed by the prosecution can be covered under Section 304 Part II of the Code. Section 304 Part II of the Code runs thus “.…………..…………….or that imprisonment of either description for a term which may extend to 10 years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” Section 304 deals with punishment for culpable homicide not amounting to murder. Culpable homicide has been defined in section 299 of the IPC. The relevant clause of that section for assessment of this appeal will be “or that knowledge, that he is likely by such act to cause death” (emphasis supplied by me). Section 304 Part II covers cases falling within the 3rd Part of Section 299 IPC and those not falling within Clause 4 to Section 300 IPC but covered by anyone of the exceptions to Section 300. In other words Part II of Section 304 applies when the act is done with the knowledge that it is likely to cause death but with no intention to cause death. Thus either as per section 299 or section 304 Part II of the IPC the intention is not vital and knowledge is enough to convict one person in respect of the charge punishment under section 304 Part II of the IPC. Now the question is what type of bodily injuries the victim suffered which resulted in his death. As per P.M report the victim along with other injuries sustained the following injuries:- “6) one deep bruise 10"×7" × muscle over anterior and Rt. Lateral aspect of chest wall. 7) fractures over Rt. Sided (sic) 2nd to 10th ribs on anti.(sic) axillary line with laceration of corresponding pleura and lung tissues . 8) fractures over left sided 2nd to 10th ribs on post, axillary line with laceration of corresponding pleura and lung tissues.” Thus it is clear from the injuries noted above that the hit on the victim by that lorry was such that the victim received many fatal wounds. This court is satisfied that the death of the victim was out of that incident. This court is satisfied that the death of the victim was out of that incident. It is true that there was no provocation on the part of the victim at least that has not come out through the evidence of PWs. The defence did not adduce any evidence to establish its case that the victim was extorting money by stopping the vehicles and that there was any provocation on the part of the police party. This court is not unmindful of the fact that when the victim was admitted at SSKM hospital on 18.7.2010 the doctor or the staff who filled in that exhibit did not note any number of vehicle and the naturally court can say that at that point of time the person who brought the victim to that hospital was not aware which number of vehicle did such casualty. It is nothing abnormal in such a case where the incident took place at Nabadwip and the victim was carried from there to Kolkata. It is also true that as per column no.7 although exhibit this accident happened on 18.7.2010 at 2.30 a.m. Nothing has come out who supplied that information to the said doctor or who filled in that exhibit 8. This Pathik Shit who brought the victim and also signed on that exhibit 8 was not examined by the prosecution or by the defence to say at what point of time, this accident took place or whether he was aware regarding the member of the truck. This exhibit cannot undo the otherwise established fact as made out by the PWs that the accident took place on 17.7.2010 at 09.35 hours. All the PWS who are policemen deposed on that line and even PW 2 and 3 who are public witness also did not vary regarding such timing of the accident. Thus this court is satisfied that too much reliance on exhibit 8 may be fatal in the interest of justice of this case. I have gone through the evidence of the PWs, taken into consideration the argument put forward by the parties and perused the documents relied upon by the prosecution. Thus this court is satisfied that too much reliance on exhibit 8 may be fatal in the interest of justice of this case. I have gone through the evidence of the PWs, taken into consideration the argument put forward by the parties and perused the documents relied upon by the prosecution. This Court is satisfied that the accused appellant was the driver of the said vehicle at the material point of time and that he had the knowledge that if the said truck hit a person even at a very low speed then even the victim may die. In the instance case before this Court unfortunately the victim died. Considering the main injuries noted in the previous portion of the judgment this Court is satisfied that the act of the accused appellant can safely be covered under Section 304 Part II of the IPC and the findings of the learned trial court to this effect and was very much cogent and legal. This Court affirms the judgment, finding of guilt and the order of conviction. I was asked by the defence to consider regarding the quantum of sentence. I have already said that the learned trial court imposed a sentence of 5 years along with fine. This accused is a man of Uttar Pradesh and duly faced the trial and did not try to delay the said trial and as such this Court can show some mercy to the said accused appellant. This Court is not unmindful of the fact that it has been claimed that the accused has lost his wife and he has his children to be looked into and reared up. The victim was 35 years old at the time of his examination under Section 313 Cr.P.C. Thus, this Court is satisfied that the substantive sentence may be lowered down from 5 years to 4 years rigorous imprisonment. The fine amount will however remain unchanged and so also the sentence in default. The accused is entitled to get set off. No order is passed in favour of the widow or the children of the victim as the victim was a police constable and they have received the financial benefits from the Government including a job on ‘so called death’ quota. Thus the appeal is answered in part. The substantive sentence imposed by the learned trial court is reduced to the extent referred to above. Thus the appeal is answered in part. The substantive sentence imposed by the learned trial court is reduced to the extent referred to above. The accused is now enjoying bail granted by this Court in CRAN NO.4198 of 2014 as per order dated 29/01/2015. The said bail order is hereby cancelled and so also the surety bonds. The accused appellant must surrender before the trial court within 2 months from this day. The learned trial court is directed to take up the matter with the sureties to inform the accused appellant regarding the order of this Court. The learned trial court may also take up the matter with the Superintendent of Police Fatehpur district, Uttar Pradesh to apprise the said appellant through the Officer-in-Charge, Kotwali Police Station of the said district. If the accused fail to surrender within the stipulated period even after such notice to the sureties then the learned trial court will be at liberty to issue warrant of arrest against the accused to secure his attendance to serve out the remaining portion of sentence. The learned trial court is also directed to inform the Chief Judicial Magistrate, Nadia regarding the default on the part of the accused to surrender himself as per order of this Court and on receipt of such order the Chief Judicial Magistrate will start proceeding against the sureties under Section 446 of the Cr.P.C. The registered sureties must be placed under suspension till the accused is apprehended or surrenders. The seized truck be returned to the registered owner along with all papers after the period of appeal is over. The seized driving licence in the name of the appellant be returned to the accused appellant after noting the order of conviction. Department is directed to transmit a copy of this order along with the Lower Court Records forthwith so that the order of this Court may be communicated to the learned trial court at the earliest. Certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.