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2020 DIGILAW 18 (CAL)

Ashoke Kumar Dey v. State Of West Bengal

2020-01-06

SHIVAKANT PRASAD

body2020
JUDGMENT Shivakant Prasad, J. - This appeal arises at the instance of the accused-appellant, Ashoke Kumar Dey who is suffering sentence as per the judgment and order dated 24.08.2015 and 25.08.2015 respectively passed by the learned Additional Sessions Judge, 3rd Court, Barasat, North 24 Parganas in Sessions Case No.31(8) 2001 corresponding to Sessions Trial No. 1(4) 2004 arising out of Barrackpore Police Station Case No.37/2000 under Section 326/307 of the Indian Penal Code whereby and whereunder the appellant was convicted for the charge under Section 326/307 of the Indian Penal Code and was sentenced to suffer R.I. for a term of (7) seven years and to pay a fine of Rs.5,000/- and in default to suffer further imprisonment for six months and also to pay compensation of Rs.1,00,000/- and in default to suffer further R.I. for one year under Section 307 of the Indian Penal Code and no separate sentence was imposed against the appellant for the charge under Section 326 of the Indian Penal Code. 2. The grounds taken in this appeal, inter alia, are that the learned Trial Court has failed to appreciate the evidence in an absolutely erroneous and unjustified manner without finding any corroboration of medical evidence for holding the accused guilty of the charges under Section 326/307 of the Indian Penal Code. It is also a ground that the learned Judge has not appraised the medical evidence in its right perspective, as there is no ingredient of the charges under Section 307 of the Indian Penal Code considering the nature of injury on the injured person. 3. The brief facts leading to the instant appeal is that: 4. One Ranu Bhowmick gave information in writing to the Officer-in-Charge of the concerned police station which was treated as first information report alleging inter alia that on 20/05/2000 the accused, the distant relation of the informant, along with his wife, namely, Lina Dey, and other relatives assembled at the house of the informant due to sudden demise of her mother-in-law, namely, Nia Rani Biswas. At about 3.30 p.m. after the departure of the dead body for cremation it was found that the accused did not accompany. Around 4 p.m. when the informant was inside the bathroom she heard hue and cry of said Lina Dey. At about 3.30 p.m. after the departure of the dead body for cremation it was found that the accused did not accompany. Around 4 p.m. when the informant was inside the bathroom she heard hue and cry of said Lina Dey. She came out and found the accused was sitting on the chest of Lina Dey and was assaulting her by a razor at different parts of her body as a result she sustained injuries. The informant and others tried to save her but the accused chased her. Subsequently on arrival of others he stopped assaulting her. Police was informed and they came and arrested the accused. Lina was taken to hospital. 5. Thus, on the complaint of Ranu Bhowmick, Barrackpore P.S. Case No.37/2000 under Section 326/307 of I.P.C. was started and on usual investigation, charge sheet against the appellant under Section 326/307 of the I.P.C. was submitted. After the case was committed to the Court of Sessions, the case was transferred to the Court of learned Sessions Judge, 3rd Court, Barasat, North 24 Parganas for trial and disposal. After framing of charges under Sections 326/307 of the I.P.C., the same was read over and explained to the appellant who abjured the guilt. Thereafter, the prosecution examined as many as 10 witnesses and also adduced the document as per the Exhibit to bring home charges against the appellant. 6. After conclusion of the trial and upon hearing the learned advocates for the parties, being the prosecution and the defence, the learned Judge passed the impugned judgment holding the appellant guilty of the offence punishable under Section 326 and 307 of the IPC and sentenced him to suffer rigorous imprisonment for a period of 7 years and to pay a fine and compensation. 7. Learned advocate appearing for the appellant submits that the version of the injured has not been supported by any medical evidence as there is no proof of the inquiry report, though the doctor was examined. 8. This Court finds from the evidence of Dr. Sukumar Nag Chowdhury, PW 10 that he has categorically deposed having found an oblique sharp cut injury extending from the middle of front of left ear along the left mandible beyond mid line, proximately 4"x 1/2"x 1/2". A small lacerated wound over left hypothenia region. A sharp cut injury oblique direction over left illacfossa of abdomen approximately 21/2" x 21/2" x 21/2". A small lacerated wound over left hypothenia region. A sharp cut injury oblique direction over left illacfossa of abdomen approximately 21/2" x 21/2" x 21/2". Small lacerated would over right ring finger. Three oblique superficial sharp cut injury over the front of neck 1"x1/2"/1/2" of left hand abrasion injuries on the injured, namely, Smt. Leena Dey who was examined by PW 10 on 20.05.2000 in Barrackpore Sub-divisional Hospital where PW 10 was posted as Medical Officer. It appears from his evidence that he found such injury on the injured on the basis of Xerox copy of the injury report marked as 'X' for identification. 9. In my view, if the original injury report was not available in the record and when the prosecution has relied on the Xerox copy of the injury report, which appears to be replica of the original bearing signature of the doctor, PW 10, who has testified the fact based on the copy of the inquiry report prepared by him from the original, the document ought to have been admitted in evidence and marked exhibit. Be that as it may, this Court has tried to obtain from the Directorate, Health Service and from the Barrackpore Hospital, the original injury report in respect of the victim Leena Dey who was treated at Sub-divisional Hospital, Barrackpore on 20.05.2000. It appears that by an order of the Superintendent of the B. N. Bose Hospital, Deputy Superintendent and a UDC were directed to be the members of such committee, but they have submitted report that as per the search by the record keeper, the said medical report could not be traced out in the Record Section despite the thorough searching. Hopefully the report may have been untraced at this distant point of time, but the fact remains as discussed above that Dr. Sukumar Nag Chowdhury who had examined the injured on 20.05.2000 and 25.05.2000 must have deposed on the basis of photocopy of the medical report. 10. This Court now finds that the prosecution case of the injury inflicted on the injured victim, PW 6 by the appellant finds corroboration by the ocular testimony of the injured herself read with the evidence of PW 10. 11. 10. This Court now finds that the prosecution case of the injury inflicted on the injured victim, PW 6 by the appellant finds corroboration by the ocular testimony of the injured herself read with the evidence of PW 10. 11. Smt. Leena Dey, PW 6 has testified the fact that she was married to the accused Ashoke Dey, the appellant herein and out of their marriage two daughters were born, namely, Anuradha Dey and Sukla Dey who are still residing with her. However, PW 6 resides in a separate mess due to souring relationship between her and her husband, the accused appellant herein. PW 6 was compelled to file a case for maintenance for herself and for her daughters and maintenance allowance was also given by the accused appellant once or twice. Thereafter, the accused husband had stopped giving any maintenance. According to PW 6 on 20.05.2000 her didisasuri had died and she went to the house of Pintu Biswas situated at Manna Para, Barrackpore, Minirampore on social call where after reaching she found the dead body of her didisasuri at about 1.30 p.m. The dead body of her didisasuri was taken to the cremation ground after her arrival at the house of Pintu Biswas. After all the male members and male relatives of Pintu Biswas went to the cremation ground along with the dead body, she was in the house along with other female members of the family. Her husband had also visited the said house, but he did not accompany the dead body to the cremation ground. When her maternal aunt asked her husband why he did not go to the cremation ground, in reply he told that he was not feeling well. Half an hour after departure of dead body from the house of Pintu Biswas, PW 6 wife went upstairs of the house only to tell her maternal aunt that she was going to her house. Half an hour after departure of dead body from the house of Pintu Biswas, PW 6 wife went upstairs of the house only to tell her maternal aunt that she was going to her house. At that time, her maternal aunt was in the bathroom and the appellant appeared on the spot and caught hold of her locks and assaulted her with fists and blows and forced her down on the floor of the room and sat on her chest and took out one razor from his pocket and started slitting her body with the said razor and inflicted injury on her left ear up to the cheek below her lip which was slit by the accused with the razor. The accused also caused injury on her neck, buttock, stomach, belly and forefingers of her right arm with the razor. She started shouting, then her maternal aunt Santa Biswas, Pravat Sanyal and few persons including Debdas Basu Roy Chowdhury came to the spot. Thus, the evidence of injury as inflicted by the accused/appellant finds corroboration by the evidence of doctor, PW 10. That apart, the witnesses who had appeared at the spot have also been examined and have corroborated the incident of inflicting injury on the injured person, PW 6 by the appellant herein and the evidence of the prosecution as adduced before the Trial Court are in general agreement to hold that it is the appellant who had inflicted injury on Leena Dey, PW 6, who happens to be the wife of the appellant himself. 12. The learned Trial Judge has concluded having regard to the totality of the evidence specially, the nature and gravity of the offence along with the age of the convict and his antecedent, the convict was sentenced to 7 years rigorous imprisonment and a fine of Rs.5,000/- in default to undergo simple imprisonment for six months more and further directed for payment of compensation of Rs. 1 lakh to the victim in default to suffer R.I. for one year more with direction that the pre-trial detention undergone by the appellant be set off from the substantive period of sentence as per the provision of Section 428 of the Cr.P.C. 13. Having heard Mr. Mallick, learned advocate appearing for the appellant and Mr. 1 lakh to the victim in default to suffer R.I. for one year more with direction that the pre-trial detention undergone by the appellant be set off from the substantive period of sentence as per the provision of Section 428 of the Cr.P.C. 13. Having heard Mr. Mallick, learned advocate appearing for the appellant and Mr. Roy Chowdhury, learned advocate appearing for the State and on perusal of the judgment impugned, I do not find any ground to disagree with the findings arrived at by the learned Trial Court. 14. At this stage, Mr. Mallick, learned advocate submits that the appellant has already suffered imprisonment for 4 years and 8 months and is likely to complete 5 years imprisonment and in respect of the charge under Section 307 of the IPC and submits for modification of sentence already undergone by the appellant. 15. The imposition of sentence by the Trial Court is the absolute discretion of the trial Court. In so far as the reduction of sentence is concerned on the whole, the sentencing process should be psychologically oriented and have a reformative and therapeutic goal, however, considering the mitigating circumstance relating to the enormity of the offence committed by the appellant, modification of sentence by way of reduction to the period sentence undergone or in term lesser than the period of sentence can be considered. In the given case, considering the relationship of the victim injured with the appellant as that of wife and husband, they had developed souring relationship as it appears from the deposition of PW 6 and she had to seek maintenance under Section 125 of the Cr.P.C. in which she was awarded maintenance and twice the appellant had paid maintenance to the PW 6, but failed and neglected to pay the maintenance on the date of occurrence, she was questioned by her husband as to why she had filed case against him which circumstances led to the commission of offence of injury inflicted on the PW 6 by her husband appellant. So, there appears circumstance which can be said to be mitigating having regard to the nature of the injury inflicted on the person of PW 6 as the doctor PW 10 has pointed out that there are superficial abrasion marks and injuries caused to PW 6. 16. So, there appears circumstance which can be said to be mitigating having regard to the nature of the injury inflicted on the person of PW 6 as the doctor PW 10 has pointed out that there are superficial abrasion marks and injuries caused to PW 6. 16. Therefore, considering the enormity of the offence and background of the offender, the sentence for a period of 5 years rigorous imprisonment instead of 7 years would serve the ends of justice. However, rest of the terms of punishment passed by the Trial Court shall remain intact. 17. With the above modification of sentence the Criminal Appeal being CRA 741 of 2015 is partly allowed and thus disposed of. 18. A copy of this judgment together with LCR be sent down to the learned Trial court forthwith for necessary note in the Sessions Trial Register and for doing the needful. A copy of this judgment be also sent to the Superintendent, Dum Dum Correctional Home for his information and doing the needful. 19. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon completion of all necessary formalities.