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2020 DIGILAW 209 (CAL)

Goutam Kuiry v. State Of West Bengal

2020-02-13

JOYMALYA BAGCHI, SUVRA GHOSH

body2020
JUDGMENT Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 7.2.2015 and 11.2.2015 passed by the learned Additional Sessions Judge, Fast Track 2nd Court Purulia in Sessions Trial no 11/11 arising out of Sessions Case no. 22/11 convicting the appellants for commission of offence punishable under Sections 326/307/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years and to pay fine of Rs.2,000/- each in default, to suffer rigorous imprisonment for six months more for the offence punishable under Section 326 IPC and to suffer rigorous imprisonment for life each for the offence punishable under section 307 of the Indian Penal Code. Both the sentences shall run concurrently. 2. The prosecution case as alleged against the appellant is to the effect that on 9.4.2010 Ajit Kr. Mahato was sitting on the bank of pond namely, Suri bandh, with his brother Hare Krishna Mahato (PW9). At that time on the instigation of Sakha Kaibarta, Gautam Kuiry fired at Ajit. As a result Ajit suffered bullet injury on his chest in the right side as well as on his left leg. He was initially admitted to Purulia Sadar hospital and thereafter transferred to Bankura Medical College and Hospital. On the written complaint of Asutosh Mahato, elder brother of the victim (PW 1) Kanda PS case no 9/10 dated 12.4.2010 under section 325/326/307/34 IPC and 25/27 of Arms Act was registered for investigation against the appellants. In conclusion of investigation, charge sheet was filed and the case was committed to the court of sessions and transferred to the court of Additional Sessions Judge, Fast Track 2nd Court Purulia for trial and disposal. Charges were framed against the appellant under sections 326/307/34 IPC and 25/27/35 of the Arms Act. Appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication. In conclusion of trial, learned trial judge by the impugned judgement and order dated 7.2.2015 and 11.2.2015 convicted and sentenced the appellants as aforesaid. However, appellants were acquitted of the charges under section 25/27/35 of the Arms Act. 3. Learned Counsel appearing for the appellants submits that prosecution case has not been proved as the fire arms were not recovered. In conclusion of trial, learned trial judge by the impugned judgement and order dated 7.2.2015 and 11.2.2015 convicted and sentenced the appellants as aforesaid. However, appellants were acquitted of the charges under section 25/27/35 of the Arms Act. 3. Learned Counsel appearing for the appellants submits that prosecution case has not been proved as the fire arms were not recovered. Acquittal under section 25/27 of the Arms Act improbabilises the sub-stratum of the persecution case altogether. He further submits that the material on record do not give rise to the conclusion that the appellants intended to murder the victim. Injury on the victim is simple in nature. Accordingly, appellants are entitled to an order of acquittal. 4. On the other hand learned counsel for the State submits evidence of the injured P.W 7 is corroborated by other witnesses as well as the medical evidence on record. Appellant no. 1 exhorted the appellant no. 2 to murder the victim clearly establishing the ingredients of the offence punishable under section 307 IPC. Injury suffered by the victim on his chest was life threatening and accordingly falls within the definition of 'grievous hurt' under section 320 IPC. Hence, the appeal is liable to be dismissed. 5. P.W 7 is the injured witness. He deposed on the date of incident he along with his brother Harekrishna (PW 9) were sitting on the bank of Suri Bandh. Goutam Kuiry and Sakha Kaibarty came to the spot. Sakha exhorted Goutam saying "Mar, guli kore khatom kore de". Upon exhortation Goutam shot on the right chest of the victim. Thereafter he again fired on his left leg below the knee. He shouted for help. PW 1 rushed to the spot and the miscreants ran away. Hearing his cries, other people also rushed to the spot. He was shifted to Purulia Sadar hospital and thereafter to Bankura Medical College and Hospital where he was treated. 6. Evidence of the injured witness is corroborated by de facto complainant PW 1. He deposed that on the fateful day, victim and another brother, Harekrishna were talking with each other on the bank of Suri bandh. At that time, Sakha Kaibarta instructed Goutam to shoot at his brother Ajit. Thereupon Goutam fired at Ajit at his chest and leg. He ran to the spot and saw Goutam and Sakha running away. His brother was taken to hospital where he was treated. At that time, Sakha Kaibarta instructed Goutam to shoot at his brother Ajit. Thereupon Goutam fired at Ajit at his chest and leg. He ran to the spot and saw Goutam and Sakha running away. His brother was taken to hospital where he was treated. On 12.4.2010 he lodged written complaint (Ext 1). Investigating officer seized a lead metal suspected to be fire ammunition from the side of the pond under a seizure list. He signed the seizure list. 7. Like P.W.1, P.W 3, Golok Mahata, P.W 4 Aswini Mahata, P.W. 5 Haladhar Majhi, P.W 10 Nitai Mahato and P.W 11 Pradip Kr. Mahato are also post occurrence witnesses. Hearing cries they arrived at the spot and found the appellants running away. Goutam was carrying a gun. PW 9 is the brother of the injured witness PW 7. He is an eye witness and has corroborated the evidence of the victim. 8. Pw 14 Sudhangshu Sarkar is the medical officer who treated the victim. He deposed that the victim was referred from Purulia Sadar hospital and was admitted at Bankura Medical College and Hospital. He complained of bullet injury on the right chest and left leg. On examination, he found bullet injury on the left leg and lower part of the right chest. He advised chest X-ray, medicines and injection. He prepared medical report (Ext. 6). He also proved the bed head ticked (Ext 9). In addition thereto, the medical report of Purulia Sadar hospital (Ext 11) was proved on admission. 9. From the evidence on record I find that the version of injured witness PW 7 is corroborated by his brother PW 9 who was present at the spot. Other post occurrence witnesses including the de facto complainants (PW1) saw the appellants running away from the spot. Goutam Kuiry had a gun in his hand. Medical witness, P.W.14, doctor who treated the injured P.W.7 at Bakuara Hospital also found gun shot injuries on his chest and leg of the victim. 10. Under such circumstances, I am unable to accept the contention of the appellants that the substratum of the prosecution case has not been proved as fire arms were not recovered and acquittal had been recorded under Sections 25/27 of the Arms Act. Evidence on record clearly shows Sakha Kaibarta had exhorted Goutam Kuiry to kill the victim and consequentially Goutam had fired at his right chest. Evidence on record clearly shows Sakha Kaibarta had exhorted Goutam Kuiry to kill the victim and consequentially Goutam had fired at his right chest. As a result, victim suffered gunshot injuries on his right chest which endangered life. He was admitted in hospital. The aforesaid facts clearly establish the intention of the appellant to murder the victim and thereby cause grievous injury on him. 11. Hence, I uphold the conviction recorded against the appellants. 12. Coming to the issue of sentence, I note the maximum sentence has been imposed upon the appellants for commission of offence punishable under Section 307 IPC. Appellants do not have criminal antecedents and the incident appears to have occurred on the spur of the moment. 13. Balancing the aforesaid aggravating and mitigating factors, I consider it prudent to reduce the maximum sentence of life imprisonment imposed upon the appellants and I direct that the appellants shall suffer rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 307 of the Indian Penal Code. Sentence imposed upon on the score of committing offence punishable under section 326 of the Indian Penal Code shall remain unaltered. 14. With the aforesaid modification as to sentence, the appeal is disposed of. 15. Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure. 16. Copy of the judgment along with L.C.R. be sent down to the trial court at once. 17. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. 18. I agree.