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2019 DIGILAW 493 (CAL)

Kalpana Shil v. State of West Bengal

2019-04-16

JOYMALYA BAGCHI, MANOJIT MANDAL

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JUDGMENT : JOYMALYA BAGCHI, J. 1. Appeal is directed against the judgment and order dated 30.05.2015 and 01.06.2015 passed by the learned Additional Sessions Judge, Fast Track Court-II, Raiganj, Uttar Dinajpur in Sessions Trial No. 18 of 2009 corresponding to Sessions Case No. 227 of 2008 convicting the appellants for commission of offence punishable under Sections 302/34 and 341 of the Indian Penal Code and sentencing them to suffer imprisonment for life each and to pay a fine of Rs. 10,000/- each, in default, to suffer rigorous imprisonment for a further period of two years each for commission of offence under Sections 302/34 of the Indian Penal Code and to suffer simple imprisonment for one month each for the offence punishable under Section 341 of the Indian Penal Code, both the sentences to run concurrently. 2. The prosecution case, as alleged against the appellants, is to the effect that on 01.09.2004 at about 10.45 p.m. when Subodh Ghosh was returning home after relieving himself, Kalpana Shil, Biren Shil and Fazlur Rahaman assaulted the victim with knife. As a result the victim fell down on the ground. He was initially taken to Raiganj District hospital. PW-1 Amar Kr. Ghosh elder brother of the victim lodged first information report resulting in registration of Raiganj P.S. Case No. 230/2004 dated 05.09.2004 under Sections 341/326/34 of the Indian Penal Code. On the next day the victim expired and Section 304 IPC was added to the array of accusations in the FIR. 3. In conclusion of investigation charge-sheet was filed against the appellants and the case was committed to the court of sessions and transferred to the Court of learned Additional Sessions Judge, Fast Track Court-II, Raiganj, Uttar Dinajpur for trial and disposal. 4. Charges were framed against the appellants under Section 304/34 of the Indian Penal Code and under Section 341 of the Indian Penal Code. 5. In the course of trial, the prosecution examined 11 witnesses. The defence of the appellants is of innocence and false implication. In conclusion of trial, the trial judge by the impugned judgment and order dated 30.05.2015 and 01.06.2015 convicted and sentenced the appellants, as aforesaid. 6. Mr. Sekhar Kr. Basu, learned senior counsel with Mr. Dutta Gupta and Mr. Anam, learned counsels for the appellants argued that the evidence of PWs. In conclusion of trial, the trial judge by the impugned judgment and order dated 30.05.2015 and 01.06.2015 convicted and sentenced the appellants, as aforesaid. 6. Mr. Sekhar Kr. Basu, learned senior counsel with Mr. Dutta Gupta and Mr. Anam, learned counsels for the appellants argued that the evidence of PWs. 1, 3 and 7, the relations of the victim, are contradictory to one another and do not inspire confidence. None of the witnesses saw the incident. The claim of PW-2 that the victim made an oral dying declaration to him is not supported by PWs. 1 and 7, wife of the victim. The evidence of PW-7, wife of the victim, suffers from embellishments when compared with her earlier statement to police and also runs contrary to the history of assault recorded by PW-8, the doctor at Raiganj District Hospital who treated the victim. Hence, the prosecution case has not been able to prove and the appellants ought to be allowed. 7. On the other hand, Mr. Ghosh, learned counsel along with Mr. Banerjee argued that PWs. 1, 3 and 7 are most natural witnesses and they have proved the prosecution case. The roles of the appellants have been specifically stated by PW-7 and the medical evidence supports ocular version of the said witnesses. Hence, the appeal may be dismissed. 8. PWs. 1, 3 and 7 are the relations of the victim. Although in his deposition PW-1 narrates the genesis of the incident of assault on his brother by Fajlu Rahaman and Biren Shill, in the latter part of his deposition he admits upon hearing the alarm he along with his wife Poly Samajdar (PW-3) and sister-in-law Gita Ghosh (PW-7) (wife of Subodh) came to the spot, they found Fazlu Rahaman was fleeing away with a knife in his hand and his elder brother Subodh was lying injured on the ground. Subodh had received severe bleeding knife injury on his abdomen and was admitted to Raigang District Hospital. On the next day he lodged complaint Exbt.1. He also signed on the inquest report after death of the victim. 9. PW-3, Poly Samasder improved on the version of her husband (PW-1) and claimed that when they arrived at the spot they saw that Kalpana Sil, Biren and Fazlur Rahaman fleeing away from the spot and the victim told that Kalpana and Biren had held his hands while Fazlur stabbed on his belly. 9. PW-3, Poly Samasder improved on the version of her husband (PW-1) and claimed that when they arrived at the spot they saw that Kalpana Sil, Biren and Fazlur Rahaman fleeing away from the spot and the victim told that Kalpana and Biren had held his hands while Fazlur stabbed on his belly. 10. PW-7, wife of the victim deposed on the fateful night after dinner she along with her brother-in-law and his wife was gossiping outside the main entrance gate. Thereafter her brother-in-law and his wife went to their room and she went to the bathroom to answer nature’s call. Her husband had gone out to relieve himself. She heard cries of her husband and upon coming out she saw Kalpana and Biren hold the hands of her husband while Fazlur assaulted him with a knife. Her brother-in-law and wife thereafter came to the spot. Kalpana had threatened her after the incident. 11. PW-8, Dr. Kamal Sarkar examined the victim at Raiganj District Hospital. He deposed that the victim stated he was attacked by Fazlur Rahaman with sharp pointed weapon. He noticed stab injuries over the right side of abdomen and loin. He proved the injury report marked as Exbt.3. 12. PW-9 who was attached to Raiganj District Hospital on the date of the incident and found the following injuries on the victim:- “1. One stitched up incised wound 1½" with drain found at left upper abdomen at mid axillary region. On removal of stitches the wound led into abdominal cavity. 2. One stitched up incised wound 1½" long found at right upper abdomen over mid axillary line. One removal of stitches the wound led into abdominal cavity where right side of liver was found repaired. 3. One stitched up incised wound with drain 1" long found at right lumber region of abdomen. On dissection the drain led to hepatorenal pouch and right kidney found repaired. 4. Three muscle deep incised wound each ¾" two at right inguinal and one right buttom region found. 5. One stitched up vertical incision at mid line of abdomen from epigastrium to umbilicus and one stitched up horizental incision at upper abdomen through epigastrium and hypocondrium found. Stitches removed at layers and wounds led into abdominal cavity where it is found that spleenectomy has been done and left perinephric tissues have been repaired. 6. 5. One stitched up vertical incision at mid line of abdomen from epigastrium to umbilicus and one stitched up horizental incision at upper abdomen through epigastrium and hypocondrium found. Stitches removed at layers and wounds led into abdominal cavity where it is found that spleenectomy has been done and left perinephric tissues have been repaired. 6. Abrasion 1" x 1" at anterior aspect of right knee.” 13. He opined that the death was due to shock and haemorrhage which was due to the effect of the aforesaid injuries which were ante mortem and homicidal in nature. The injuries were sufficient to cause death of a person in ordinary course of nature. He proved the postmortem report Exbt.4. 14. PW-10 is the investigating officer of the case. He investigated the case and submitted charge-sheet. In cross-examination he stated that Gita did not tell him that she noticed Kalpana and Biren holding her husband and Fajlur assaulting her husband by a knife. 15. I have examined the evidence of PWs. 1, 3 and 7. Analyzing of their evidence as a whole I am doubtful whether any of them were eye witnesses to the incident. Although, PW-7 claimed on hearing the cries of her husband she came out and saw the incident, the evidence of PWs. 1 shows that he along with his wife PWs. 3 and sister-in-law (PW-7) came at the spot after the incident and saw Fazlur running away with a knife. 16. In the backdrop of the aforesaid evidence of PW-1 it is difficult for me to accept that PW-7 had seen the incident as claimed by her in court. That apart, when her evidence is compared with her earlier statement to police it appears that her narration with regard to the incident is an embelishment as she did not state to the police that she had noticed Kalpana and Biren holding her husband and Fazlur assaulting him with a knife. 17. Accordingly, I am of the opinion that none of the aforesaid witnesses had seen the incident but had arrived at the place of occurrence immediately after the incident and had seen Fazlur running away from the spot with a knife. 18. It has been argued that PW-2 saw the other appellants, namely, Kalpana and Biren running away from the spot along with Fazlur. She also claimed that victim had made oral dying declaration to her. 18. It has been argued that PW-2 saw the other appellants, namely, Kalpana and Biren running away from the spot along with Fazlur. She also claimed that victim had made oral dying declaration to her. Evidence of PW-3 in this regard is not corroborated by her husband PW-1 or PW-7. None of them spoke about the dying declaration of the victim at the spot. Such vital piece of information is also significantly absent in FIR. The fact that the appellants Kalpana and Biren were seen running away from the spot is also not corroborated by PW-1 or PW-7. Furthermore PW-8 the doctor who treated the victim at Raiganj hospital noted that the patient disclosed Fazlur had assaulted him. 19. From the aforesaid evidence on record I have no doubt that on the fateful night victim had been brutally assaulted by Fazlur on various parts of the body resulting in his death. The role of other appellants, namely, Kalpana and Biren in holding the victim while he was assaulted does not appear to be convincing. Evidence of PW-7 in that regard appears to be an embellishment and the allegation in the FIR that Biren had participated in the assault does not find support from the evidence on record. 20. Accordingly, I am of the opinion that there is hardly any evidence on record to establish the charge against the appellants, Kalpana and Biren in the instant case. Evidence on record, however, overwhelmingly establishes the role of Fazlur Rahaman in assaulting the victim on various parts of the body with a knife which were sufficient in ordinary course of nature of death. Accordingly, I am of the opinion that he is solely responsible for the death of the appellant and conviction may be recorded against him under Section 302 IPC. Although, charge had been framed under Section 302/34 IPC, however, in view of the unequivocal evidence on record disclosing primary role of Fazlur in the assault of the victim as appearing in the dying declaration noted in Exbt.4 and other evidence on record, we are of the opinion, conviction of appellant Fazlur under Section 302 IPC instead of Section 302/34 IPC does not cause prejudice to him or failure of justice. 21. In the light of the aforesaid discussions, I record conviction against appellant no. 21. In the light of the aforesaid discussions, I record conviction against appellant no. 3, namely, Fazlur Rahaman for commission of offences punishable under Section 302 IPC and Section 341 IPC and uphold the sentences imposed upon him by the trial court. 22. Conviction and sentence of appellant nos. 1 and 2, namely, Kalpana Shil and Biren Shil are set aside. 23. The appeal is, partly allowed. 24. Appellant nos. 1 and 2, namely, Kalpana Shil and Biren Shil shall be released from custody forthwith upon execution of a bond to the satisfaction of the trial court which shall continue for six months in terms of Section 437A of the Code of Criminal Procedure, if not wanted in any other cases. 25. The period of detention suffered by appellant no. 3, namely, Fazlur Rahaman during investigation, enquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure. 26. Copy of the judgment along with L.C.R. be sent down to the trial court at once. I agree – Manojit Mandal, J.