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2017 DIGILAW 846 (CAL)

Arjun Ghorai v. State of West Bengal

2017-11-03

JOYMALYA BAGCHI, MOUSHUMI BHATTACHARYA

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JUDGMENT : Joymalya Bagchi, J. 1. Report is submitted by the learned Additional District and Sessions Judge, First Court, Contai, with regard to the age of the appellant no. 1 as it was claimed that he was a minor at the time of commission of offence. From the report it appears that appellant no.1 was found to be 17 years and 11 days at the time of commission of offence and, therefore, he was held to be juvenile in conflict with law. Such report is kept on record. 2. The appeal is directed against the judgement and order dated 21.11.2014 and 24.11.2014 passed by learned Additional District and Sessions Judge, First Court, Contai, convicting the appellants for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life each and to pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for six months more. 3. The prosecution case, as alleged, against the appellants is to the effect that on 03.06.2005 while the deceased, Swapan Kumar Ghorai, was taking his wife Kousalya Ghorai to the doctor. The appellants accosted them and dragged down Swapan Kumar Ghorai towards their house over the issue of old litigation. An altercation was ensured between themselves whereupon appellant no. 1, Arjun Ghorai, the juvenile stabbed Swapan Kumar Ghorai with his knife on the chest while Manoranjan Ghorai held the hands of the victim. Upon hue and cry being raised, neighbours ran to the spot and the appellants fled away. The victim was initially taken to Mugberia Primary Health Center for treatment and thereafter shifted to Tamluk Hospital where he was admitted and finally to P.G. Hospital where he expired on 30.08.2005. While the victim was in hospital, first information report was lodged by his wife Kousalya Ghorai being -Police Station Case No. 32 of 2005 dated 03.06.2005 under Sections 326/307/34 of the Indian Penal Code. Upon death of the victim, offence under Section 302 of the Indian Penal Code was added. Upon completion of investigation charge sheets was filed and the case was committed to the Court of Sessions and transferred to the court of Learned Additional Sessions Judge, First court, Contai for trail and disposal. Charges were framed against the appellants and under Sections 326/34, and under Sections 307/34 of the Indian Penal Code and under Sections 302/34. Upon completion of investigation charge sheets was filed and the case was committed to the Court of Sessions and transferred to the court of Learned Additional Sessions Judge, First court, Contai for trail and disposal. Charges were framed against the appellants and under Sections 326/34, and under Sections 307/34 of the Indian Penal Code and under Sections 302/34. The appellants pleaded not guilty and claimed to be tried. Prosecution examined twelve witnesses and exhibited number of documents. The defense of the appellants was one of innocence and false implication. In conclusion of trial the learned Trial Judge convicted and sentenced the appellants, as aforesaid. Hence the present appeal. 4. In course of hearing of the appeal, plea was raised as to juvenility of appellant no.1. Hence, direction was given upon the trial court to make an enquiry on such plea. Pursuant to such enquiry, aforesaid report has been submitted stating that the appellant no.1 was 17 years 11 days at the time of commission of offence and therefore, a juvenile in conflict with law. 5. Relying on the said report learned advocate for the appellants submitted that the benefit of juvenility ought to be extended to appellant no.1. That apart, he further submitted that the evidence on record does not establish the prosecution case beyond reasonable doubt. There is enmity between the appellants on the one hand and the victim and his family on the other hand and therefore reliance on the sole eyewitness i.e. PW1 namely, the wife of the victim to bring home the guilt of the appellant unwarranted. It is further submitted that the evidence of prosecution witnesses would show that the incident arose in the course of an altercation by and between the parties and therefore, the finding of guilt of murder against the appellants is unjustified. He also submitted that the medical evidence does not establish that the death was not the direct cause of the injuries suffered by the victim and that the victim had died after more than three months of hospitalization and due to other supervening circumstances. He accordingly, prayed for acquittal of the appellants. 6. Mr. Arun Kumar Maity, learned Additional Government Pleader submitted that PW1 is the most natural witness as she was accompanying her husband who had been dragged by the appellants from the bicycle and thereafter murdered. He accordingly, prayed for acquittal of the appellants. 6. Mr. Arun Kumar Maity, learned Additional Government Pleader submitted that PW1 is the most natural witness as she was accompanying her husband who had been dragged by the appellants from the bicycle and thereafter murdered. The appellant no.1 stabbed the victim on the chest while appellant no.2 held him from the back. Hence, the intention to cause death is clearly evident from the conduct of the appellant. It is further submitted that the medical evidence corroborates the version of the ocular witness and therefore, the appeal is liable to be dismissed. 7. We have considered the evidence of the witnesses in the light of the aforesaid submissions. 8. P.W.1, Smt. Kousalya Ghorai is the de-facto complainant and the wife of the victim in the instant case. She deposed that on 5th Magh, 2005 at about 5:30 A.M. she along with her husband were going to Dr. Anup Das on a bicycle. When they arrived in-front of the house of Manoj Dinda the appellants stopped them. The appellant no.2 Monoranjan Ghorai started assaulting her husband with fists and blows. She raised hue and cry but to no effect. Monoranjan held her husband’s hands from behind while appellant no.1 Arjun stabbed him with a knife on the left side of his chest. She continued to rises alarm and some people arrived at the spot. Her husband was taken to Mughberia hospital. Her husband was treated by Dr. Rabin Jana. Her husband was thereafter, referred to Tamluk district hospital. She lodged complaint at the police station. The complaint was scribed by one Sasadhar Maity as per her dictation and read over and explained to her. She proved the written complaint bearing her signature (Exhibit-1). At Tamluk District hospital her husband was admitted for eight days and thereafter taken to P.G. hospital, Calcutta. She was treated at P.G. hospital for three months and finally died on 30th August, 2005. There was long standing property dispute between her husband and the appellants. There were suits between themselves and the appellants have been threatening her husband with dire consequences for long. 9. In cross-examination, she admitted that her husband regained consciousness at Tamluk hospital. She stated that she was also assaulted by the appellants. Her wearing apparels were stained by blood but not seized by the police. 10. P.W.2, Tarapada Ghorai is the cousin of the victim. 9. In cross-examination, she admitted that her husband regained consciousness at Tamluk hospital. She stated that she was also assaulted by the appellants. Her wearing apparels were stained by blood but not seized by the police. 10. P.W.2, Tarapada Ghorai is the cousin of the victim. He stated that the victim died at P.G. hospital on 30th August, 2005. He deposed that there was long standing dispute between the victim and the appellants. Cases were pending between them. One day while the victim and his wife were going on a bicycle, the appellants stabbed the victim in the chest. The incident took place on 3rd June, 2005 around 5:30/5:45 A.M. When he went to the spot he found that the appellant no.2 was fleeing away and the appellant no.1 had been apprehended by villagers. He found marks of blood on the spot. 11. P.W. 4, Smt. Santi Ghorai is the grandmother of the victim as well as mother-in-law of appellant no.2. She deposed that appellant no.2 had got hold of the victim while appellant no.1 had stabbed him with a knife. She was working in the field. She noticed a quarrel. She rushed to the spot and found Swapan lying injured on the spot. Both the accused persons fled away before her arrival. 12. In cross-examination, she stated that she could not say the plot no. of the land where she was working. 13. P.W.5, Mintu Bhunia is a local witness who deposed that he found Swapan lying on a rickshaw van with injuries. He, however, did not support the prosecution case and was declared hostile. 14. P.W. 6, Mantu Ghorai is the uncle of Swapan. He deposed that three years ago he heard a hue and cry in-front of the house of the appellants. He found a gathering at the spot. He found appellant no.2, Monoranjan going away in his bicycle and accused Arjun was running away through the field. On the spot he found Swapan lying in an injured condition. 15. These are the witnesses of fact. 16. P.W.3 was the Officer-in-charge attached to Bhupatinagar police station who received the written complaint from PW1 and drew up the formal FIR (Mat. Exhibit-3). He entrusted the investigation of the case to S.I. Mukul Mian. 17. P.W.10, Ranjan Lal Sengupta, the SI of police was posted at Bhowbanipur P.S on 31.8.2005. 15. These are the witnesses of fact. 16. P.W.3 was the Officer-in-charge attached to Bhupatinagar police station who received the written complaint from PW1 and drew up the formal FIR (Mat. Exhibit-3). He entrusted the investigation of the case to S.I. Mukul Mian. 17. P.W.10, Ranjan Lal Sengupta, the SI of police was posted at Bhowbanipur P.S on 31.8.2005. He held inquest over the dead body of the victim at P.G hospital. He signed on the inquest report. 18. P.W.7 Swapan Kumar Dey and P.W. 12 Kukul Mia are the two investigating officers in the instant case. They investigated the crime, prepared rough sketch map of the place of occurrence, arrested the appellants, obtained post mortem report of the victim and filed the charge sheet in the instant case. 19. P.W.8 is the medical doctor who treated the victim. On examination he found the following: “Injury on left side of the lower chest about 3cm incised wound and at the same place one hematoma of the diameter of 5cm.” 20. After giving first aid the victim was referred to Tamluk District Hospital. 21. PW 9, Dr. Siddique was the RMO-cum-Clinical tutor of SSKM Hospital who treated the victim on 30.8.2005. On examination he found hemothorax on the left side of the chest. The prognosis of the patient was not good at that time. At the time of admission of the patient the upper portion of the injury report was filled in by the staff of the hospital in the course of official duty. The opinion in the report was written by him and he proved the said report. He issued the death certificate of the victim. The reason of death has been mentioned as cardio respiratory failure in a post operative case of left side chest stab injury complicated by empyema (left) falciparum malaria and multi-system organ failure. The exact cause of death was to be determined by medical autopsy. 22. P.W. 11, Dr. Tapan Kanti Roy was the autopsy surgeon. He found the following injuries on the victim: “(I) There was penetrating wound on the left side of chest wall measuring 3”x1”x 2 ½” (2) Sustained rupture of left side of lung with bruise of adjacent tissues (3) Wound was stitched by two stitches measuring ½” x ½” (4) Both lungs were pale and injuries of the left side lung were noted. At different areas pus point is noted (5) Both the kidneys were pale and pus point noted in both kidneys on the modular region.” 23. In his opinion the death was due to injuries of lung and secondary infection of lung and kidneys ante mortem in nature. 24. From the evidence on record it appears that the evidence of P.W 1 with regard to the assault on the victim on the fateful day is supported by the evidence of other witnesses namely, P.W 2, P.W 4 and P.W 6. 25. P.W 2, P.W 4 and P.W 6 are post occurrence witnesses and upon arriving at the spot they found appellant no. 2 running away from the spot and that appellant no. 1 had been apprehended by villagers. They also found the victim lying on the ground. However, all of them had spoke of an altercation which took place at the spot between the victims on the one hand and the appellants on the other. Evidence has also cone on record that there is a long standing court battle between the family of the victim and that of the appellant. It, therefore, appears that on the fateful day while the victim was taking his wife for medical treatment, an altercation broke out between him and appellants over the land issues. In the course of such altercation appellant no. 2 held the hand of the victim wile appellant no. 1 gave a stab blow on his chest. Although from the evidence of the prosecution witnesses, we do not have any doubt that the appellants were responsible for the injury on the person of the victim, it however appears that the attack on the victim was not a pre-meditated one but had occurred in the course of an altercation which broke out between themselves over the longstanding disputes. Medical evidence on record shows that the victim suffered a single injury on the chest and that he had survived for three months. Evidence of P.W 9 who treated the victim at SSKM Hospital and issued the death certificate also shows that while in hospital he had suffered complications like Faliciparum malarial infection which is unrelated to the injury caused by the appellants. Post mortem doctor also spoke of the death of the victim due to the effect of injuries and secondary infection of lung and kidneys. 26. Post mortem doctor also spoke of the death of the victim due to the effect of injuries and secondary infection of lung and kidneys. 26. In the light of the aforesaid medical evidence it cannot be said with certainty that the injury caused by the appellants was sufficient in the ordinary course of nature to cause death and it appears that the victim also contracted other ailments like Falciparum Malarial infection during the intervening period prior to his death which may also have contributed to the secondary infections in the kidney and lungs causing death of the victim 27. In the aforesaid factual matrix, we are of the opinion that the injury of the victim was caused by the appellants in the course of an altercation without pre-meditation and that the death had been hastened due to supervening factors like malarial infection unconnected with the incident of assault. We are not unconscious of the Explanation 2 in section 299 IPC which, inter alia, provides that when death is caused due to bodily injuries, the person who caused the injuries shall be liable for the death of the victim even if the life could have been preserved by skillful treatment. However, in the aforesaid factual matrix it appears that the injuries were caused without pre-meditation and in the course of a quarrel. The appellant’s did not act in a cruel and unusual manner. The victim survived for 3 months and had contracted Falciparum Malarial infection (which is wholly unrelated to the injury or its treatment) in the meantime which may have also contributed to the secondary infections in the lungs and kidney causing the death. Hence, we are of the view that it would be prudent to scale down the conviction from 302 IPC to Section 304 Part I/34 IPC. 28. Accordingly, the conviction of the appellants is modified to section 304 Part I read with 34 IPC. 29. We find that the appellant no. 1 was a juvenile at the time of commission of the offences and has served out more than 3 years imprisonment in the meantime. He has presently attained majority. Hence, while upholding the aforesaid conviction against appellant No.1, we set aside the sentence imposed in law. Coming to the issue of sentence imposed upon the appellant no. 1 was a juvenile at the time of commission of the offences and has served out more than 3 years imprisonment in the meantime. He has presently attained majority. Hence, while upholding the aforesaid conviction against appellant No.1, we set aside the sentence imposed in law. Coming to the issue of sentence imposed upon the appellant no. 2 in view of the fact the modification in the conviction recorded against him and the fact that the incident occurred in the course of altercation over land dispute between village folk and that he had not stuck the fatal blow upon the victim, we reduce his sentence and direct him to suffer rigorous imprisonment for seven (7) years and to pay a fine of Rs. 10,000/-. In default, he has to suffer rigorous imprisonment one (1) year more. 30. Period of detention, if any, undergone by the appellant 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. 31. Release order of appellant no.1 be forthwith sent to the Midnapore Correctional Home. 32. Let a copy of this judgment along with the lower court records be sent down to the trial court at once for necessary compliance. 33. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites. I agree.