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2017 DIGILAW 225 (CAL)

Khagendra Kumar Das v. State of West Bengal

2017-02-28

JOYMALYA BAGCHI

body2017
JUDGMENT : Joymalya Bagchi, J. The appeal is directed against the judgment and order dated April 16, 1994 passed by the Learned Judge, 12th Bench, City Sessions Court, Calcutta convicting the appellants for commission of offence punishable under Section 304 (Part II) of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 3 years each and to pay a fine of Rs.20,000/- each in default to suffer simple imprisonment for one year more with further direction that the amount of fine, if deposited, will be paid in equal proportion to P.W 1, P.W 3 and P.W 4. 2. Prosecution case, as alleged, against the appellants is to the effect that the appellants and the victim Chanchal Kumar Das were four brothers lived jointly in a four-storied ancestral building at 14, Antoney Bagan Lane, Calcutta - 9. Appellant no. 2 is the eldest of all the brothers and looked after the affairs of the joint family and the joint family business with the help of others. He occupied the second floor. The other three brothers and their widowed mother lived on the first floor of the building. There were occasional quarrels between the victim Chancal who was the youngest brother and the appellants over the joint family property and the victim was also assaulted by them. 3. On 29.11.1991 around 12 noon the victim was sleeping in his room when appellant no. 2 came and asked Shefali, (P.W 1), wife of the victim to wake him up and at that time appellant no. 1 and 3 also came to the spot and the appellants took the victim to the second floor. Screams and sounds were heard by PW 1 and thereafter the victim ran down to his room in the first floor. The appellants followed the victim and started assaulting him and brought him to the verandah of the first floor. Then they jointly and forcibly threw the victim on the road from the verandah of the first floor. P.W 1 started shouting. The appellants went down, dragged the victim inside the house and closed the door. The local people were not allowed to enter the house on the plea that it was a family matter. The injured victim was taken to the hospital where he succumbed to his injuries. P.W 1 started shouting. The appellants went down, dragged the victim inside the house and closed the door. The local people were not allowed to enter the house on the plea that it was a family matter. The injured victim was taken to the hospital where he succumbed to his injuries. P.W 1 lodged written complaint with Amherst Street P.S. In conclusion of investigation, charge sheet was filed against the appellants under section 302/34 IPC. The case was being a sessions triable one, was committed to the Court of Sessions and charge was framed against the appellants under section 302/34 IPC who pleaded not guilty to the charge and claimed to be tried. 4. In the course of trial, the prosecution examined as many as 12 witnesses to establish its case. 5. It was the specific defence of the appellants that the victim had fallen from the verandah accidentally and died. It, however, did not examine any witness of its own but sought to probabilise such defence through cross-examination of the prosecution witnesses. 6. In conclusion of trial, the trial court by judgment and order dated 16.4.1994 rejected the plea of the defence and convicted and sentenced the appellants, as aforesaid. 7. Mr. Karmakar, learned advocate for the appellants submitted that there is no evidence of motive for committing the crime. P.W 2 in cross-examination had admitted that there was good relationship between the appellants and the victim and in fact appellant no. 2 provided money to the children of the victim, P. W 3 and P. W 4, for tuition and other expenses. He submitted that medical evidence supported the case of accidental fall and, therefore, the benefit of doubt ought to be extended to the appellants in the aforesaid factual backdrop of the case. 8. Mr. Ayan Basu, learned advocate appearing for the State, on the other hand, submitted that there were a number of witnesses, P.W 1, P.W 3 and P.W 4, who saw the appellants assaulting the victim and thereafter throw him down from the verandah of the first floor of the building. There was one meter wall around the verandah as transpiring from the evidence of P.W 7 and, therefore, question of accidental fall is clearly ruled out. It is not the case that the victim had committed suicide by jumping from the verandah of the first floor of the building. There was one meter wall around the verandah as transpiring from the evidence of P.W 7 and, therefore, question of accidental fall is clearly ruled out. It is not the case that the victim had committed suicide by jumping from the verandah of the first floor of the building. Hence, the appeal is liable to be dismissed. 9. P.W. 1, P.W 3 and P.W 4 are wife, son and the daughter respectively of the victim. They are the most vital witnesses in the instant case. 10. P.W 1 is also the defacto complainant of this case. She deposed that her husband died on 29.11.1991. She lived with her husband and two children namely Rima Das (PW 3) and Dibyendu Das (PW 4) at 14, Antony Bagan Lane, Calcutta 9. The appellants are the three brothers. They also lived in the same premises. Monorama Das is her mother-in-law. They are a joint family. It was a four storied building. The appellant no. 2 resided on the second floor of the building. All the others resided on the first floor. The brothers had a joint family business. Her husband did not have good relations with his brothers. On 29.11.1991 at about 12 or 12.30 p.m. she heard shouting of appellant no. 1 and 2 and came out of the bathroom. Appellant no. 2 asked her to call her husband. She did so and all the brothers went to the second floor. Children were playing on the verandah of the first floor. She heard a quarrel in the second floor. Children went upstairs hearing the quarrel. After a while her husband ran down to the first floor. The other three brothers followed her husband to her room. They assaulted her husband with fists and blows. They announced that they would kill him. Then her husband was taken out of the room forcibly to the verandah. She followed them. Her husband was bleeding from his nose. They threw her husband on the ground from the first floor verandah. All of them rushed to the ground floor. The local people wanted to enter the house. But they were not allowed to enter the house. The gate was closed. Other brothers began to throw water and cold-ice on the victim as first aid. They took her husband to the nursing home. On refusal, the victim was taken to Medical College and Hospital. The local people wanted to enter the house. But they were not allowed to enter the house. The gate was closed. Other brothers began to throw water and cold-ice on the victim as first aid. They took her husband to the nursing home. On refusal, the victim was taken to Medical College and Hospital. Her elder brother Samir Saha came to her house and took her to the hospital. Her relatives told her that the condition of her husband was not good. She came to Amherst Street Police Station and lodged complaint. Shyamal, her brother's friend wrote the complaint as per her dictation which was read over and explained to her. She signed the written complaint (Ext. 1). Her husband succumbed to his injuries. 11. In cross-examination, she deposed that the accused persons had purchased another shop and asked her husband to occupy that shop. She also deposed that she was talking terms with the neighbors. The business under dispute was inherited by the accused and her husband and was not self acquired. She could not say the name of the bank where funds of the business were kept. Her children read in a nearby school. They had one private tutor. Appellant no. 2 made payment of the tuition fees and other expenses for her children. Appellant no. 3 did the marketing for the family. Appellant no. 2 used to collect the profits of the business and deposited the same in the bank in their joint account. 12. P.W 3, Rima Das is the daughter of the victim. She deposed that on 29.11.1991 at about 10 a.m. she and her brother were playing in the verandah and her father was sleeping. Her mother was in the bathroom. Appellant no. 2 asked her mother to call her father. He took her father upstairs. Hearing a hue and cry, they went upstairs and after a while they came down. All the accuseds followed her father and entered their room. Appellant no. 2 hurled a blow on the nose of her father. His nose was bleeding profusely. Her father was taken to the verandah from the house. Then accused persons forcefully lifted her father and threw him to the ground floor from the verandah. Thereafter, the appellants rushed to the ground floor and picked him up from the road and took him inside the gate and closed the gate. His nose was bleeding profusely. Her father was taken to the verandah from the house. Then accused persons forcefully lifted her father and threw him to the ground floor from the verandah. Thereafter, the appellants rushed to the ground floor and picked him up from the road and took him inside the gate and closed the gate. Local people brought rickshaw and the victim was taken away to the hospital by rickshaw. 13. In cross-examination, she deposed she did not remember the date of her examination which commenced after the death of her father. She stated that she was in her father's house when police came. Police interrogated inmates of the house. In her maternal uncle's house police asked her in the evening. She denied that she was tortured by her maternal uncle and had deposed falsely. 14. P.W 4, Dibyendu Das is the son of the victim. He deposed that on 2911.1991 appellant no. 2 asked his mother to call his father who was sleeping. His father was taken upstairs where there was an altercation. Thereafter, his father came down to their room. The uncle followed his father and assaulted him with fists and blows and took him to the verandah. His mother took out the spectacles from his father's eye and when she was going inside the room for keeping the spectacles, his uncles caught hold of his father's hands and legs and threw him off the verandah. His father fell on the street below. He stated that he did not know what happened thereafter. He was then reading in class III. He did not go to school because that day was declared Bandh. In cross examination, he deposed that he did not remember the dates of the last annual examination. Police came on the date of incident in the afternoon. Police entered into their room. He was not interrogated by the police. He did not know if his didi was interrogated by the police. Police asked him to sign the paper and asked him to give evidence. Police visited his maternal uncle's house on the day following the day they went there. Police did not interrogate him there. He did not make any statement to the police. He had deposed to the court about the incident for the first time. 15. Police asked him to sign the paper and asked him to give evidence. Police visited his maternal uncle's house on the day following the day they went there. Police did not interrogate him there. He did not make any statement to the police. He had deposed to the court about the incident for the first time. 15. P.W 2 is the police photographer who took photographs of the place of occurrence and exhibited the said photographs as Material Exhibit III series. The negatives are marked Mat. Ext. IV series. He also took photograph of the victim at Calcutta Police Morgue (Ext. V). The negative is being marked as Mat. Ext. VI. 16. P.W 5, Dr. Dipankar Guha Roy is a Demonstrator of Forensic & State Medicine, Medical Collage, Calcutta who held post mortem examination on the victim and found 30 injuries on the victim. He deposed that he held post mortem examination within 36 hours of death of the victim. 17. He deposed that he has not noted the nature of death. He also deposed that the victim was not subject to any disease or deformity before is death. Injuries like abrasion, bruises, haematoma and fracture may be caused by assault. Such assault may be in the form of fists and blows and the kicks and friction against hard and blunt subject including floor. Abrasion, bruises of such nature can be caused by fall on a hard surface all of a sudden or against friction of hard surface. He could not say from the injuries as to whether the person had fallen on the ground from a height of 5 meter. The death according to him was due to the effects of injuries which were ante mortem in nature. 18. In cross examination, he stated that he could not say whether injuries were by accidental or homicidal. Injuries on the rib cage be caused even by fall without being aided by other voluntary agency. All the injuries can be caused only by a fall either accidental or through voluntary agency. 19. P.W 7 is the plan maker. As per request, he drew up the sketch map and prepared three plans (Exhibit-3, 3/1 & 3/2). In cross-examination, he stated that the height of the railing of the first floor is 1 meter. 20. P.W 8 is the scribe of the FIR. He identified his signature on the said document. 21. 19. P.W 7 is the plan maker. As per request, he drew up the sketch map and prepared three plans (Exhibit-3, 3/1 & 3/2). In cross-examination, he stated that the height of the railing of the first floor is 1 meter. 20. P.W 8 is the scribe of the FIR. He identified his signature on the said document. 21. P.W 9 is the brother of P.W 1. He deposed that he went to New People Nursing Home where the victim was brought for admission with serious injuries and thereafter, he accompanied the victim to Medical College and Hospital where the victim was admitted. He took P.W 1 to the hospital and thereafter to the police station. Condition of the victim was precarious. He was examined by the Investigating Officer. 22. P.W10 is a local Pan shop owner. He deposed that Chanchal had quarrel with his brothers over properties. In cross-examination, he stated that 29th November, 1991 was a day of Bangla Bandh. 23. P.W. 11 is the junior medical officer who was posted at General Emergency Ward of Medical College in November, 1991. On 29th November, 1991 one Chanchal Kumar Das was brought in an injured condition to the hospital by appellant no.1. The history of injury given by the parties that the patient had fallen from the second floor to the first floor accidentally. The patient was in gasping condition. He prepared a medical certificate (Exhibit-5). The death certificate was written by Dr. Indrajit Koley (Exhibit-6). 24. P.W12 is the S.I. of Police attached to Amherst Street Police Station. He received written complaint from the Officer-in-charge for investigation. He proved the formal FIR (Exhibit- 1/3). He took up the investigation. He visited the P.O., examined the witnesses, went to the Medical College & Hospital and examined the doctor. He collected the medical certificate relating to injury. He arrested the accused persons. He seized bed-sheet with stains of blood from the bed of the deceased and one steel coloured finger ring from the floor of the room. He prepared a seizure list and signed on it (Exhibit- 4/1). He identified the bed-sheet (Mat. Exhibit-1). He identified the ring (Mat. Exhibit-2). He examined the witnesses. He requisitioned the services of police plan maker and photographer. He arranged for post-mortem examination of the dead body. After completion of investigation, he submitted charge-sheet. 25. He prepared a seizure list and signed on it (Exhibit- 4/1). He identified the bed-sheet (Mat. Exhibit-1). He identified the ring (Mat. Exhibit-2). He examined the witnesses. He requisitioned the services of police plan maker and photographer. He arranged for post-mortem examination of the dead body. After completion of investigation, he submitted charge-sheet. 25. In cross-examination, he stated that it takes 10 minutes from P.O. to P.S. It was a Bandh day. He did not visit Popular Nursing Home. He did not visit the house of Samir Saha on that day. He went to his house on a subsequent date. He examined the witnesses in the locality. Barring the two public witnesses namely, Dharam Nath Roy and Sukumar Sarkar, he did not record the statement of other witnesses. He did not record the statement of Samir Saha at the police station after FIR was registered. 26. From the evidence on record it appears that on 29th November, 1991 the victim suffered severe injuries on his person and was admitted to Medical College and Hospital where he expired. Evidence of the autopsy surgeon is to the effect that the injuries on the victim were ante-mortem in nature. It is also the evidence of the autopsy surgeon that such injuries may be caused either by accidental fall or by voluntary agency. Hence, it is left to the ocular version of the witnesses to establish as to whether the fatal injuries suffered by the victim was by way of an accidental fall or due to the assault of the appellants who finally pushed him to the ground floor from the verandah of the first floor of the building. 27. Evidence of P.W 1, 3 & 4 in this regard is most crucial. All the witnesses have unequivocally stated of a quarrel taking place between the appellants on the one hand and the victim on the other hand in the second floor of the building. Thereafter, the victim came down to the first floor in his room. The appellants followed him and subjected him to assault in the room, dragged him out on the verandah and pushed him from the verandah of the first floor. As a consequence he suffered serious injuries. The appellants thereafter, took the victim to the hospital where he breathed his last. 28. The appellants followed him and subjected him to assault in the room, dragged him out on the verandah and pushed him from the verandah of the first floor. As a consequence he suffered serious injuries. The appellants thereafter, took the victim to the hospital where he breathed his last. 28. It has been argued that P.W 1, 3 & 4 are the relations of the victim and interested witnesses. There is no independent witness supporting the allegations of physical assault or pushing the victim from the verandah of the first floor to the ground floor. It is also argued that the victim may have accidentally fallen from the verandah of the first floor. It is true that there are no independent witnesses in the instant case. However, one cannot lose sight of the fact that the alleged assault and the act of pushing of the victim from the first floor verandah to the ground floor took place within the precincts of the house and not under public gaze. There is also evidence on record that the appellants had resisted the local people to come to the place of occurrence and closed the doors of the building. Under such circumstances, lack of corroboration of the evidence of P.W 1, 3 & 4 by independent witnesses ipso facto cannot render their version improbable. 29. On the other hand, if the evidence of P.W 1, 3 & 4 is tested in the anvil of the topography of the place of occurrence namely, the verandah in the first floor of the building, their version appears to be more probable compared to the defence version of accidental fall. PW7 deposed that the first floor verandah had a one meter railing around it. It is difficult to accept that a full-grown person would accidentally fall from a verandah which is abutted by a one meter wall. It is nobody's case that the victim had voluntarily jumped out of the said verandah. In this backdrop, the prosecution version that the appellants in a fit of rage had physically lifted the victim and thrown him from the verandah to the ground floor appears to be the most probable and logical cause of his fall to the ground floor causing severe injuries. In this backdrop, the prosecution version that the appellants in a fit of rage had physically lifted the victim and thrown him from the verandah to the ground floor appears to be the most probable and logical cause of his fall to the ground floor causing severe injuries. Defence plea of accidental fall is most fanciful in view of the fact that the verandah is surrounded by a wall of considerable height rendering it absurd to presume the victim, a full-grown adult, would accidentally fall therefrom. A fanciful doubt floated by the defence which is neither supported by evidence nor probabilised by circumstances can be a ground to disbelieve the prosecution case founded on clear and cogent ocular version of eye witnesses. 30. Hence, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt. Conviction of the appellants is upheld. 31. Coming to the issue of sentence I find that the appellants and the victim were brothers. They were staying in a joint family and all of a sudden a quarrel broke out between themselves. In a fit of rage, the appellants had assaulted the victim and lifted him and threw him from the first floor verandah to the ground floor. Immediately thereafter they realised their mistake, applied ice water on the victim and shifted him to hospital. Such conduct of the appellants clearly shows that their action was neither pre-planned nor did they intend to kill the victim. 32. However, one cannot lose sight of the fact that the appellants were fully aware of the fatal consequences of throwing the victim from the first floor verandah to the ground floor. The victim is survived by his wife and two children. In the meantime, three decades have passed and the appellants are also advanced in age. Bearing in mind the aforesaid facts and balancing the principles of proportionate and restorative justice in the matter of sentencing, I modify the sentence imposed upon the appellants and direct that they shall suffer rigorous imprisonment for two years and shall pay a fine of Rs.25,000/- each, in default, shall suffer rigorous imprisonment for six months more. The fine amount, if realised, shall be paid to P.W1, 2 & 3 in equal share as compensation under Section 357(2) of the Code of Criminal Procedure. 33. The fine amount, if realised, shall be paid to P.W1, 2 & 3 in equal share as compensation under Section 357(2) of the Code of Criminal Procedure. 33. The bail bonds of the appellants are cancelled and they are directed to forthwith surrender and serve out the sentence and deposit the fine, as aforesaid. If they fail to do so, the trial court shall be at liberty to execute the sentence and realise the fine in accordance with law. 34. Period of detention, if any, undergone by the appellants during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of section 428 of the Code of Criminal Procedure. 35. With the aforesaid modification, the appeal is disposed of. 36. The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 37. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.