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2017 DIGILAW 282 (CAL)

Ananta Kamilya v. State of West Bengal

2017-03-14

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2017
JUDGMENT : Debasish Kar Gupta, J. 1. This appeal is preferred by the appellant against a judgment and order of conviction dated September 27, 2012, and sentence dated September 28,2012, passed by the learned Additional District & Sessions Judge, 1st Fast Track Court, Contai, Purba Medinipur in Sessions Trial No.42/September/2006 arising out of G.R. (E) 06 of 2005 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentencing him to suffer rigorous imprisonment for life and also to pay a fine of Rs.1000/-, in default to suffer rigorous imprisonment for a further period of one month. 2. The facts of the case in a nutshell are as under:- A written complaint was submitted by one Ganesh Chandra Kamilya (PW1) of village-Makrampur, police station-Pataspur, District-Purba Midnapur on January 2, 2005 at 10.15 hours. 3. According to the above written complaint, on December 25, 2004 at 8/9 O'clock in the morning the father of PW 1 namely, Srikanta Kamilya was repairing his blacksmith workshop and cow-shed at his residence. Suddenly, the appellant along with Rampada Kamilya and Smt. Arati Kamilya arrived at that place and assaulted him on his head with a bamboo stick. PW 4 (widow of the deceased person) went to rescue her husband. Accused Arati Kamilya assaulted PW 4. The father of PW 1 became senseless. PW 1, PW 2 and PW 3 took his father to Pataspur police station where from he was removed to Pataspur Public Health Centre. The deceased person was shifted to Egra Hospital for better treatment and thereafter he was transferred to Midnapur (Paschim) Hospital. Subsequently, the deceased person was further transferred to P.G. Hospital, Kolkata. As per advice of the doctors, the deceased person was further removed to Ramchandra Bhanja Medical College, Cuttack, Orissa for treatment. He breathed his last on January 1, 2005 at Ramchandra Bhanja Medical College, Cuttack, Orrissa. 4. Inquest examination was conducted over the dead body of the deceased person at SCB Cuttack Neurosurgery Bed no.2, Ramchandra Bhanja Medical College, Cuttack, Orissa by the local police with reference to Mangalabag U.D. Case No.1 dated January 1, 2005. The dead body was identified by PW 1. After conducting post mortem examination Dr. 4. Inquest examination was conducted over the dead body of the deceased person at SCB Cuttack Neurosurgery Bed no.2, Ramchandra Bhanja Medical College, Cuttack, Orissa by the local police with reference to Mangalabag U.D. Case No.1 dated January 1, 2005. The dead body was identified by PW 1. After conducting post mortem examination Dr. P. Mahanti, Assistant Professor of Forensic Medicine and Toxicology of Ramchandra Bhanja Medical College, Cuttack, Orrissa (PW 9), prepared post mortem report of the dead body of the deceased person on January 1, 2005 at 14.30 hours in the aforesaid hospital. According to the opinion of PW 9, the cause of death was sustaining of injuries on head by blunt object which were ante mortem in nature and sufficient to cause death. 5. A formal FIR bearing Pataspur P.S. Case No.01/2005 was registered on January 2, 2005 at 10.15 hours after making G.D. Entry No.59 of 2005 initiating a case against Ananta Kamilya (appellant), Rampada Kamilya, Paresh Roy and Smt. Arati Kamilya for commission of offence punishable under Section 304/34 of the I.P.C. Sub Inspector Joydev Sasmal (PW 8) attached to Pataspur P.S. was entrusted with the investigation of the case. 6. On receipt of the charge of investigation PW 8 went to the place of occurrence prepared rough sketch map of the place of occurrence along with index. One bamboo stick was recovered from the place of occurrence. In course of investigation the appellant and Smt. Arati Kamilya were arrested. Charge sheet against the appellant, Smt. Arati Kamilya and Rampada Kamilya was submitted by the I.O. for commission of offence punishable under Section 302/34 of the I.P.C. showing accused Rampada Kamilya as absconder. 7. Charge was framed on December 18, 2006 against the appellant, Smt. Arati Kamilya and Rampada Kamilya for commission of offence punishable under Section 302/34 of the I.P.C. by committing murder of Srikanta Kamilya in furtherance of their common intention. 8. After considering oral evidence of 9 prosecution witnesses and other documentary evidences as also statements of accused recorded under Section 313 of the Cr.P.C. the impugned judgment, order of conviction and sentence were passed. 9. It is submitted by Mr. 8. After considering oral evidence of 9 prosecution witnesses and other documentary evidences as also statements of accused recorded under Section 313 of the Cr.P.C. the impugned judgment, order of conviction and sentence were passed. 9. It is submitted by Mr. Mainak Bakshi, learned Advocate appearing on behalf of the appellant, that the presence of the appellant at the place of occurrence was not proved beyond all reasonable doubts in view of the doubt regarding the presence of purported eyewitnesses PW 1 to PW 5 at the place of occurrence. According to him, there were contradictions in between the evidences adduced by the aforesaid prosecution witnesses. It is also submitted by Mr. Bakshi that the seizure of weapon of offence was also not proved. 10. According to Mr. Bakshi, the injury sustained by the deceased person was simple with prognosis guarded. So, the probability of the death of the deceased person due to negligence in giving proper treatment in due time could not be ruled out. It is further submitted by Mr. Bakshi that not only the common intention of the accused persons in furtherance to their act of committing murder of the deceased person was not proved in the trial but also the intention of the appellant commission of such murder of the deceased person was not proved beyond all reasonable doubts. 11. Reliance is placed by Mr. Bakshi on the decision of Kartarey & Ors. v. State of U.P., reported in AIR 1976 SC 76 in support of his above submissions. It is submitted by Mr. Ranabir Roy Chowdhury learned Advocate appearing on behalf of the State respondent that the name of the appellant, amongst other accused persons, was incorporated in the medical report of the medical officer of Pataspur Block Public Health Centre, Purba Medinipur, who had treated the deceased person on December 25, 2004. The place, time of occurrence and the manner in which the commission of murder of the deceased person took place was proved from the evidence of PW 1 and PW 2, both being eyewitnesses. According to him, the commission of offence by Rampada Kamilya and Smt. Arati Kamilya was proved beyond all reasonable doubts in view of the evidence of eyewitness PW 2 which was corroborated with the evidence of I.O. (PW 8). 12. According to him, the commission of offence by Rampada Kamilya and Smt. Arati Kamilya was proved beyond all reasonable doubts in view of the evidence of eyewitness PW 2 which was corroborated with the evidence of I.O. (PW 8). 12. Having heard the learned counsel appearing for the respective parties as also after considering evidence on record I find that the prosecution case was based on the evidence of PW 1, PW 2, PW 3, and PW 5. All the above witnesses, according to their respective evidence, were present at the place of occurrence at the material point of time. According to PW1, the appellant came to the place of occurrence with Rampada Kailla and Arati Kamilla on the date of occurrence at about 08.00/09.00 hours while the deceased person was repairing his blacksmith shop and cow-shed. The appellant and his associates raised protest. Suddenly, the appellant assaulted the deceased person on his head with lathi (banser tara). His head was fractured with profuse bleeding. The deceased fell down on the ground. The deceased was conscious. The PW 1, PW 2, PW 3 and PW 5 took the deceased to the patashpur polish station first. Then he was removed to the Patashpur Public Health Center. Then he was removed to Egra Hospital for better treatment and thereafter, he was transferred to Midnapur (Paschim) Hospital. Subsequently, the deceased was shifted to P.G. Hospital, Kolkata. A few days, thereafter, he was removed to Ramchandra Bhanja Medical College, Cuttack, Orissa. 13. The above evidence of the PW 1 was fully corroborating with those of other eyewitnesses, namely, PW 2, PW 3 and PW 5. None of the above witnesses was slackened during cross-examination. The evidence of the aforesaid eyewitnesses in respect of the injury which caused the death of the deceased ultimately was corroborating with the evidence of the PW 9, the medical expert who had conducted the post mortem examination over the dead body of the deceased. That apart, the outcome of preliminary investigation as recorded in the inquest report, was also corroborating with the ocular evidence of the aforesaid eye witnesses. The finding of the learned court below was correct in this regard. 14. After scrutiny of the evidence of PW 4, I find that it was not stated by her that the appellant or his any other associates. The finding of the learned court below was correct in this regard. 14. After scrutiny of the evidence of PW 4, I find that it was not stated by her that the appellant or his any other associates. In other words, the evidence of PW1, PW 3 was not corroborating with those of PW 2, PW4 and PW5. There were contradictions in between the evidence of the above eye witnesses with regard to the role played by the other accused persons, namely Sri Rampada Kamilya and Smt. Arati Kamilya. So, the findings of the learned trial judge in this regard do not require interference. 15. Regarding the next contention of the appellant in respect of seizure of weapon of offence, from the oral evidence of eyewitnesses, namely the PW 1, PW 2, PW 3 and PW 5 it was revealed that the deceased got injury on his head as he had been assaulted by the appellant with the help of a lathi. As a result, his head was fractured. The nature of injury was corroborating with the inquest report. The evidence of medical expert (PW 9) read with the cause of death mentioned in the post mortem report supported the above evidence of the eye witnesses. According to the settled proposition of law, the evidence of eye witness which was corroborated by the evidence of medical expert should not be discarded merely because the weapon of offence had not been recovered in course of investigation. Reference may be made to the decision of Anwarul Haque v. State of U.P., reported in (2005) 10 SCC 581 and the relevant portion of the above decision is quoted below:- "15. Eyewitness in the present case have described the knife, and merely because the knife has not been recovered during investigation same cannot be a factor to discard the evidence of PW1 and 2. Wounds noticed by the doctor (PW3) also throw considerable light on this aspect. The doctor's opinion about the weapon, though theoretical, cannot betotally wiped out. In that view of the matter the appellant has been rightly convicted under Section 324 I.P.C." 16. In view of the above settled principle of law, the facts and circumstances of this case also does not support the aforesaid contention of the appellant. 17. The doctor's opinion about the weapon, though theoretical, cannot betotally wiped out. In that view of the matter the appellant has been rightly convicted under Section 324 I.P.C." 16. In view of the above settled principle of law, the facts and circumstances of this case also does not support the aforesaid contention of the appellant. 17. The decision of Kartarey (supra) does not help the appellant in view of distinguishable fact of the case in hand that the deceased sustained only one injury on his head as a result of assaulting him by a lathi (blunt) object and that fact was brought on record with the evidence of eyewitnesses and corroborated by the opinion of the doctor (PW 9). 18. While considering the next contention of the appellant that the injury sustained by the deceased was simple with remarks "prognosis guarded", it was not in dispute that the deceased was removed to the Pataspur Primary Health Centre immediately after the incedent. He was then removed to the Egra Hospital without delay. Thereafter, he was transferred to Midnapur (Paschim) Hospital. Again, he was transferred to P.G. Hospital, Kolkata. Ultimately, he had been admitted in Ramchandra Bhanja Medical College, Cuttack, Orissa, where he breathed his last. From the opinion of the doctor read with the post mortem report, there was no doubt regarding the cause of death. In view of the above, there is no substance in the aforesaid contention of the appellant. 19. With regard to the next contention of the appellant that the intention of the appellant for commission of murder of the deceased was not proved in the trial, it the well settled principle of law decided in Zille Singh v. State, reported in 1980 (Supp) SCC 690, requirement of motive become academic when there is direct evidence to connect the accused with murder. Therefore, the impugned judgment does not require interference on the above ground also in view of availability of direct evidence on record in the case in hand. 20. This appeal stands dismissed. 21. Let this judgment together with the Lower Court's records be sent back to the learned Court below expeditiously. 22. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis. Md. Mumtaz Khan, J. : I agree. Appeal Dismissed.