Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 654 (CAL)

Dipak Sonkar v. State of West Bengal

2019-06-20

RAJASEKHAR MANTHA

body2019
JUDGMENT : 1. The instant appeal is directed against the judgment and order dated 12th May, 2008 passed by the Learned Additional District & Sessions Judge, 2nd Fast Track Court, Hooghly, in Sessions Trial No. 22 of 2007 arising out of Sessions Case No. 55 of 2007. The appellant was convicted under Section 324 of the IPC. 2. The facts of the case are inter alia that on 28th September, 2003 the appellant who was a workman in the Ganges Jute Mill at Bansberia (also called the Bansberia Jute Mill) wrongfully restrained one Pankaj Kumar Sharma (victim) and voluntarily caused hurt by stabbing the said victim with a knife. The day of occurrence was a Sunday when the jute mill was functioning. The complaint was lodged by the Security personnel of the Jute Mill and the FIR was registered on 28.09.2003 u/s 341, 326 and 307of the Indian Penal Code. 3. The Charge was framed on 25th July, 2007 and the Trial commenced on 10th September, 2007. 4. The prosecution examined the following witnesses: (i) PW 1 - Ashok Ram, co-workman at jute Mill. (ii) PW 2 - Rajendra Shaw, cable workman of the jute mill. (iii) PW 3 - Pankaj Kr. Sharma, the victim, a barber workman at the jute mill. (iv) PW 4 - Dharmendra Sharma, brother of the victim and casual labour of the jute mill. (v) PW 5 - Sekhar Nath Sana, Personnel Manager of the jute mill of the time of the incident. (vi) PW 6 - Sarju Sharma, workman of the jute Mill. (vii) PW 7 - Umesh Ojha, Security Supervisor of the jute mill. (viii) PW 8 - Ram Asroy Rajbhar, workman of the jute mill. (ix) PW 9 - Asst. Sub-Inspector, Santosh Das. (x) PW 10 - Suresh Mahato, son of employee of jute mill and resident of quarter. (xi) PW 11 - S.I. Anil Kr. Saha. (xii) PW 12 - Nandadeo Pandey, Security in-charge of jute mill. 5. In course of evidence of PW 1 has stated that he had witnessed the incident on 28th September, 2003 at about 11.30 am, when the appellant stabbed the victim. The said PW 1 was returning after completion of duty shift in the Jute mill after 11.00 am. He also stated that after the stabbing incident the victim sustained injuries on his abdomen, back, rib and chest. The said PW 1 was returning after completion of duty shift in the Jute mill after 11.00 am. He also stated that after the stabbing incident the victim sustained injuries on his abdomen, back, rib and chest. The mill security personnel apprehended the appellant immediately and handed him over to the police where he was taken into custody. A large number of persons are stated to have witnessed the incident. The victim was taken to Bandel ESI Hospital wherefrom he was referred and taken to Chinsura Imambara Sadar Hospital and later to Calcutta Medical College. In cross-examination he also stated that Nandadeo Pandey (PW 12), Umesh Ojha (PW 7) and Ram Asroy Rajbhar (PW 8) also witnessed the incident. 6. PW 2 has stated that the victim used to stay next door in the living quarters of the jute mill with him. He is not however an eyewitness and stated that he had only heard about the incident and the injuries and the hospitalisation of the victim. 7. PW 3 is the victim. He narrated the entire incident. He deposed that at about 10.45 am he was sitting in the campus of the jute mill near the water reservoir. He stated that the appellant suddenly came towards him using filthy and abusive language and assaulted him on the chest, abdomen, left rib, back, and thumb finger with a knife. He also stated that he was stabbed on the back and on the front left rib. He stated that he was sent to hospital by another darwan, Nandadeo Pandey (PW 12) along with Ram Asroy Rajbhar (PW 8). He confirmed that he was first taken to Bandel ESI Hospital and thereafter to Chinsura Imambara Hospital and subsequently to Medical Collage at Kolkata. His health had deteriorated after the incident and that he is unable to lift any heavy substance and work hard. In cross-examination he has stated that he could not recapitulate whether there was a durwan on duty at the gate. He could not recall anybody who was going out of or coming into the jute mill at the time of the incident, by reason of his injury. 8. PW 4 is the brother of the victim and was also an eyewitness to the entire incident and narrated the same, corroborating the other witnesses. 9. He could not recall anybody who was going out of or coming into the jute mill at the time of the incident, by reason of his injury. 8. PW 4 is the brother of the victim and was also an eyewitness to the entire incident and narrated the same, corroborating the other witnesses. 9. PW 5 who was personnel manager of the jute mill submitted that he was informed by Nandadeo Pandey (PW 12) of the entire incident and that he was at the relevant point of time inside his cabin in the jute mill premises. 10. PW 6 who is the father of the victim was not an eyewitness but present at the jute mill immediately after the incident. Upon coming to know the incident he is stated to have rushed to the Chinsura Imambara Sadar Hospital. He also stated that he was informed that several stabbed injuries were found on chest and back of the victim. 11. PW 7 Umesh Ojha was the security supervisor of the Jute Mill and was declared hostile. He however admitted in cross-examination that at about 11.00 am in the morning on 28th September, 2003 he found the victim being stabbed by another workman and the victim had fallen on the ground. He thereafter stated that he had taken the victim to the hospital. He also stated that he had caught the appellant alongwith weapon (knife). He took the appellant, with the help of PW 12 Nandadeo Pandey to the personal manager Sekhar Nath Sana (PW 5). He signed as witness on the seizure list of the police which contained the weapon details. 12. PW 8 Ram Asroy Rajbhar who witnessed the entire incident and narrated the same and corroborated the evidence of PW3, PW4 and PW7. 13. PW 9 ASI Santosh Das stated that in the Police outpost at the jute mill two constables were posted. On the 28th September, 2003 at about 11.00 am he received a phone call from the personnel manager of the jute mill regarding the incident. He is stated to have reached the jute mill and met PW 5 Sekhar Nath Sana. The said PW 9 identified the weapon. His cross-examination was declined. 14. PW 10 stayed in the same living quarters as the victim in the jute mill but he was not an eyewitness and narrated the incident as he had heard. 15. He is stated to have reached the jute mill and met PW 5 Sekhar Nath Sana. The said PW 9 identified the weapon. His cross-examination was declined. 14. PW 10 stayed in the same living quarters as the victim in the jute mill but he was not an eyewitness and narrated the incident as he had heard. 15. The PW 11 was the Investigating Officer who visited the place of occurrence after the incident and on being instructed by the Officer in-Charge of Mogra Police Station. 16. The FIR was registered by the Officer in-Charge under Section 341/326/307 of the IPC on 28th September, 2003. The FIR was exhibited. The appellant was arrested. The sketch map was prepared and the seizure list also prepared. He produced the discharge certificate of the Calcutta Medical College and the Bed Head Ticket. He also seized blood stained wearing apparel of the victim. 17. PW 12 Nandadeo Pandey is the security in-charge of the jute mill who narrated the incident as deposed by the PW 1, 2, 3, 4 and 7 and corroborated the same in its entirety. 18. The appellant was examined under Section 313 Cr.P.C. but apart from the denying the incident has not explained in defence any part or portion of the incriminating evidence against him. 19. Based on the above, the Court below found the appellant guilty of the offence u/s. 324 of IPC and convicted him for two years of rigorous imprisonment and a fine of Rs.4000/-. The appellant was found not guilty of the offenses u/s. 341, 307 and 326 of the IPC. 20. Learned Counsel for the appellant would argue that for conviction under Section 324 of the IPC, the prosecution is required to bring on record the medical evidence to show the extent and gravity of injury. Since the doctor who diagnosed and treated the victim was not examined, the order of conviction passed by the Trial Court cannot be sustained. This Court finds that the injury reports and the hospital discharge certificates and other medical documents relating to the victim have been exhibited. The said documents were never challenged by the defence in the trial. The victim was in hospital for a substantial period of time. The other witnesses corroborated the Hospitalisation of the victim. This Court finds that the injury reports and the hospital discharge certificates and other medical documents relating to the victim have been exhibited. The said documents were never challenged by the defence in the trial. The victim was in hospital for a substantial period of time. The other witnesses corroborated the Hospitalisation of the victim. The incident of stabbing of the victim by the appellant has been proved by the evidence of PW 1, 2, 3, 4, 7 and 8 and hence the ingredients of Section 324 of the IPC stand fulfilled. Hence the absence of the evidence of the doctor cannot be fatal to the case of the prosecution. 21. The appellant would next argue that only a carbon copy of the injury report was exhibited in course of trial and the originals were not produced. The said evidence could not have been admitted by the Trial Court. This Court finds that the exhibition of the carbon copies was not challenged or objected to by the defence in course of trial and hence the said argument is not sustainable in the instant appeal. 22. Counsel for the appellant further argued that PW 3 the victim and one of the witnesses had deposed in cross-examination that he could not see the condition of the appellant and hence could not have been identified him as he did in the examination-in-chief. He also argued that the said PW 3 deposed that PW 12 Nandadeo Pandey was the durwan on the said day but in cross-examination said that he could not recollect whether the durowan of the jute mill was present on the said date. This Court finds that the PW 3 in no uncertain terms identified the appellant as the person who stabbed him. The same is corroborated by the PW 1, 4, 7, 8 and 12. The minor deviation in cross-examination cannot, therefore, be deemed to be a serious inconsistency rendering corroboration by other witnesses nugatory. 23. Mr. Pramanick appearing for the appellant next argue that there is serious inconsistency as to whether PW 8 is Ramashis Rajbhar or Ram Ashray Rajbhar. Different version of the names have emerged from the evidence of PW 1, 3, 7 and 12. This Court finds that the same is the mere typographical error and that Ram Ashray Rajbhar and Ramashis Rajbhar are in fact one and the some person i.e. the PW 8. Different version of the names have emerged from the evidence of PW 1, 3, 7 and 12. This Court finds that the same is the mere typographical error and that Ram Ashray Rajbhar and Ramashis Rajbhar are in fact one and the some person i.e. the PW 8. The appellant cannot take advantage of mere typographical error. The said error, however ought to have been corrected before the Trial Court. 24. The last argument of the appellant is that PW 11 the Investigating Officer had deposed that the statement of the victim PW 3 was recorded by him under Section 161 of the Cr.P.C. This according to the appellant is contrary to evidence of PW 3 that his statement was not taken by the police. It is now well settled that a statement u/s. 161 of Cr.P.C. is of corroborative value. Non-recording of the statements u/s. 161 of Cr.P.C. is not fatal to the trial since the entire case of the prosecution has been proved by reason of the oral and documentary evidence that has emerged in the Trial. 25. In view of the aforesaid discussions and considering the evidence on record, the argument of the appellant that the prosecution case has not been proved beyond reasonable doubt, cannot be sustained. 26. The State was represented by counsel who made detailed submissions in support of the Judgement and order of conviction. 27. This Court has carefully analysed the evidence that come on record relating to the entire incident of the appellant's stabbing the victim. According to this Court, the charge under Section 324 has been proved beyond any reasonable doubt. The appellant has not been able to dislodge the evidence produced by the prosecution in cross-examination. Even the witness that turned hostile has deposed against the appellant in cross-examination. The evidence read as a whole sufficiently proves the case of the prosecution and hence the judgment of the Trail Court cannot be faulted. 28. The Judgment and Order of conviction of the Court below is well considered and is hereby sustained. In the circumstances this Court is of the view that the appellant must undergo the punishment imposed. The appeal is hereby dismissed. 29. The bail granted to the appellant is hereby cancelled. The appellant shall surrender or be taken into custody to undergo the sentence imposed on him. 30. In the circumstances this Court is of the view that the appellant must undergo the punishment imposed. The appeal is hereby dismissed. 29. The bail granted to the appellant is hereby cancelled. The appellant shall surrender or be taken into custody to undergo the sentence imposed on him. 30. Urgent Xerox certified copy of this judgment, if applied for, be supplied to the parties on urgent basis.