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2022 DIGILAW 193 (CAL)

Khokan Sardar v. State Of West Bengal

2022-02-09

JOYMALYA BAGCHI, RABINDRANATH SAMANTA

body2022
JUDGMENT Joymalya Bagchi, J. - appeal is directed against the judgment and order dated 29.04.2004 and 30.04.2004 passed by the learned Additional Sessions Judge, 4th Court, Howrah, in Sessions Trial No. 557 of 2003 convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and pay a fine of Rs.10,000/- each, in default to suffer rigorous imprisonment for a period of two months more. 2. Prosecution case, as alleged against the appellants, is to the effect that on the fateful day i.e. on 17.09.2003 when Biswakarma Puja was being celebrated, the appellants had been teasing girls. Deceased, namely, Shakti Sankar Kanrar objected to such undesirable behaviour of the appellants. 3. This enraged the appellants. They ran to the shop of one Sofiar Molla and brought out an iron pati (a flat iron rod) and upon the instruction of Abed Ali Sardar (appellant no. 2) appellant no. 1 (Khokan Sardar) struck on the head of the deceased. As a result, the deceased suffered bleeding injury on the head. He fell down at the spot. He was rushed to the hospital where he expired on 20.09.2003. First information report was lodged by Sandip Kanrar, brother of the deceased, on 17.09.2003 being Sankrail Police Station Case No. 136 of 2003 dated 17.09.2003 under Sections 326/307/34 of the Indian Penal Code. Upon death of the victim, Section 302 of the Indian Penal Code was added to the F.I.R. Appellants were arrested and the weapon of offence was recovered. Charge-sheet was filed against the appellants and charge was framed under Section 302/34 of the Indian Penal Code against the appellants and Sofiar Rahaman Molla. They pleaded not guilty and claimed to be tried. Defence of the accused persons was one of innocence and false implication. In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents. On conclusion of trial, learned trial Judge by the impugned judgment and order dated 29.04.2004 and 30.04.2004 convicted and sentenced the appellants, as aforesaid. By the self-same judgment and order, learned trial Judge was pleased to acquit Sofiar Rahaman Molla of the charges levelled against him. 4. Mr. Chatterjee, learned Counsel appearing for the appellants argues that the place of occurrence has not been established. Investigating officer did not seize blood stains from the place of occurrence. By the self-same judgment and order, learned trial Judge was pleased to acquit Sofiar Rahaman Molla of the charges levelled against him. 4. Mr. Chatterjee, learned Counsel appearing for the appellants argues that the place of occurrence has not been established. Investigating officer did not seize blood stains from the place of occurrence. None of the local shop owners was examined. Eye-witnesses are chance witnesses and their presence at the place of occurrence has not been established beyond doubt. 5. He further submits that iron pati and iron rod is not the same. Recovery of iron rod on the showing of the appellants has not been proved. No statement of the appellants was recorded during investigation. He also submits as co- accused Sofiar Molla has been acquitted, the prosecution case to the extent appellants had brought the weapon of offence from his shop has been disbelieved by the trial Judge. He further submits appellant No. 2 had not assaulted the deceased and did not share common intention to murder the victim. Incident occurred in the course of a sudden altercation and on the spur of the moment appellant No. 1 had dealt a single blow on the victim. 6. Hence, he did not intend to murder the deceased. Accordingly, he prays for acquittal of the appellants. 7. In reply, Mr. Bapuli, learned Additional Public Prosecutor submits that the appellants had been teasing girls in the locality. The deceased objected to such conduct. This enraged the appellants. They rushed to the shop of one Sofiar Molla and brought out an iron pati and surrounded the deceased. Thereafter, on the instruction of Abed Ali Sardar, appellant No. 2, Khokan Sardar, appellant No. 1 assaulted the deceased on his head. Victim suffered head injury which caused extensive damage to the internal organs and he died. Post mortem doctor (P.W. 12) stated that the injury was sufficient in ordinary course of nature to cause death. Conduct of the appellants, nature of weapon used to assault the deceased and the grave nature of injury suffered which was sufficient in ordinary course of nature to cause death clearly proves the appellants shared common intention to murder the victim. Hence, the appeal is liable to be dismissed. 8. In order to examine the issues raised on behalf of the appellants, it is necessary to summarise the evidence on record. 9. Hence, the appeal is liable to be dismissed. 8. In order to examine the issues raised on behalf of the appellants, it is necessary to summarise the evidence on record. 9. P.W. 1, Sri Sandip Kanrar, is the brother and first informant in the instant case. He deposed that on 17.09.2003 at 8 p.m. the incident occurred at Champatala near Mini Truck Stand under P.S. Sankrail. When he arrived he found that his brother lying with injury. Victim was taken to P.G. Hospital in serious condition and thereafter shifted to Calcutta Hospital where he died on 20.09.2003. He lodged written complaint which was scribed by P.W. 9. He proved his signature on the complaint. In cross- examination, he stated that he came to know that there was dispute over women in the fair. 10. P.Ws. 2 to 6 and 10 are the eye-witnesses to the incident. 11. P.W. 2, Protap Kanrar, deposed that on the relevant date he had come to the market to purchase cloth from a shop which was situated beside the Mini Truck Stand at Champatala under P.S. Sankrail. He saw the appellants took out an iron pati from the shop of Sofiar Molla and surrounded the victim, Shakti. Upon the direction of Abed Ali Sardar, Khokan Sardar assaulted Shakti on the head with the iron pati. As a result, Shakti fell down on the ground. He was bleeding profusely. Then P.W. 2 along with P.W. 1 Sandip Kanrar and others took Shakti to P.G. Hospital and from there to Calcutta Hospital where he was admitted. On 20.09.2003 Shakti expired at the hospital. He also deposed that Khokan and Abed were teasing girls which was protested by Shakti. Thereafter, he had been assaulted. He is the signatory on the inquest held over the body of Shakti by the police (P.W. 13). He proved his signature on the inquest report. 12. In cross-examination, he stated that Shakti had fallen in front of Gouranga Hotel which was 60/70 cubits from the stand. 13. P.W. 3, Sailen Chowdhury, is another eyewitness who was standing in front of Mini Truck Stand. He deposed that that there was an incident of teasing of girls. Shakti tried to remove the miscreants. Thereupon Abed Ali brought out an iron pati from the shop of Sofiar and Khokan assaulted Shakti with that iron pati on the right side of his head. He deposed that that there was an incident of teasing of girls. Shakti tried to remove the miscreants. Thereupon Abed Ali brought out an iron pati from the shop of Sofiar and Khokan assaulted Shakti with that iron pati on the right side of his head. As a result, Shakti sustained bleeding injury and fell down. He was shifted to the hospital. This witness also deposed that at 10.45 p.m. police came to the spot along with the appellants. On showing of Khokon, the iron pati was recovered from a jungle near the Doba behind the Mini Truck Stand. He was the signatory of a seizure list. He identified the iron pati in Court. 14. P.W. 4, Prabir Chakraborty, deposed that on 17.09.2003 at about 08.00 p.m, he was returning from a laundry near Mini Truck Stand at Champatala More. He saw Abed Ali and Khokon take out an iron pati from the shop of Sofiar and rushed towards Gouranga Hotel in front of Mini Truck Stand. Thereafter, upon direction of Abed Ali, Khokan assaulted Shakti on the head. He also deposed that the appellants were teasing girls, which had been opposed by the victim. He was a signatory of the inquest held over the dead-body. He also identified the weapon of offence. 15. Similarly, P.W. 5, Dipen Bag and P.W. 6, Partha Pratim Banerjee had witnessed the incident and corroborated the version of P.W. 2 and P.W. 4 herein. P.W. 5 had come to the market to purchase medicine from Janakalyan Medicine Shop while P.W. 6 had been returning from a Xerox Printing Shop after printing some papers. P.W. 6 was running a Coaching Centre in his house. 16. P.W. 10, Ram Pratap Kahar is a driver of a Mini Truck in the Truck Stand. On 17.09.2003, at about 08.00 p.m. he was standing in front of the Mini Truck Stand. At that time, he found Abed Ali and Khokan were teasing girls during Biswakarma Puja. Shkakti asked them not to do so. Thereafter, the appellants went to the shop of Sofiar and brought an iron pati and surrounded Shakti. On the direction of Abed Ali, Khokan assaulted Shakti on the head with the iron pati. Khokan attempted to give a second blow but he resisted. The victim fell down on the floor. The miscreants ran away with the iron pati. Thereafter, the appellants went to the shop of Sofiar and brought an iron pati and surrounded Shakti. On the direction of Abed Ali, Khokan assaulted Shakti on the head with the iron pati. Khokan attempted to give a second blow but he resisted. The victim fell down on the floor. The miscreants ran away with the iron pati. Shaki was removed to a hospital in a Maruti Car. 17. Subsequently, Police brought Abed and Khokan to the spot. Abed and Khokan took the Police to the backside of the Mini Truck Stand and brought out the iron pati. He was a signatory to the seizure list of the weapon of offence. He identified the weapon of offence in the Court. These are the witnesses of fact. 18. Medical witnesses of the instant case are P.Ws. 7, 11 and 12. 19. P.W. 7, Dr. Ajoy Agarwal, is the consultant Neurology Surgeon who was attached to CMRI, Calcutta. He deposed that on 17.09.2003 at about 09.10 p.m., Shakti Kanrar was admitted in hospital under him. As per the statement of the patient party, he was assaulted with iron rod following which the patient sustained severe lacerated injuries on the right side of forehead with active bleeding from nose. He proved the injury report as well as the bed head ticket marked as exhibits 4 and 5. On examination of the patient, he found there was right frontal lacerated wound about 10 cm. long with bone fragments, blood was oozing out from contused brain. Right black eye with cross sub-conjunctival haemorrhage. The patient was operated upon but expired on 20.09.2003 at 11.55 p.m.. 20. P.W. 11, Dr. Amit Banerjee, was the Registrar of the said Hospital at the relevant time. When he examined the patient, he found the following injuries:- 'Black eye 3' lacerated injury over the right side of his skull with pulper conjunctival haemorrhage.' Upon being shown the weapon of offence, he deposed that the injury could be caused by the said weapon. 21. P.W. 12, Dr. P. B. Das, is the post-mortem Doctor. He found the following injuries on the deceased. 'i) Abrasion over left side frontal region placed side-to-side measuring 21/2'x11/2'. ii) Abrasion over dorsal of left and placed side-to-side measuring 1'x1/2'. iii) Abrasion over back of right arm lower part measuring 1'x1'. iv) Bruises over right side of neck and anteriorly measuring 31/2'x2'. P. B. Das, is the post-mortem Doctor. He found the following injuries on the deceased. 'i) Abrasion over left side frontal region placed side-to-side measuring 21/2'x11/2'. ii) Abrasion over dorsal of left and placed side-to-side measuring 1'x1/2'. iii) Abrasion over back of right arm lower part measuring 1'x1'. iv) Bruises over right side of neck and anteriorly measuring 31/2'x2'. v) Thick bruises over whole of skull. vi) One stitched up wound over right side of forehead to left side placed obliquely with 16 stitches. On removal of the stitches it measured 5'x1/2' x bone deep. vii) person of frontal bone removed and refixed with guidance of compound fracture of frontal bone.' 22. He opined death was due to the effect of head injury, ante-mortem and homicidal in nature. He further clarified that the head injury was sufficient to cause death in ordinary course of nature. He also stated that the injury could be caused by the iron rod seized, material exhibit 1. The head injury was caused by a single stroke. Abrasions and bruises were due to fall on the ground after the head injury upon being hit on the head. 23. P.W.- 5, Durga Prasad Nandy, is the Investigating Officer of the case. He visited the place of occurrence in front of Gouranga Hotel at Champatala. He prepared the rough sketch map, marked as exhibit 9. He arrested the accused persons. They accompanied him to the place of occurrence and they took him to the Mini Truck Stand. Khokan Sardar brought out the iron pati from the shrubs behind the Mini Truck Stand. He seized the article under seizure list, exhibit 3/1. He identified the iron pati, material exhibit 1. He examined the witnesses under 161 of the Code of Criminal Procedure. Upon death of Shankar, he made prayer for adding Section 302 of the Indian Penal Code. He collected the inquest report. He submitted the charge-sheet. In cross-examination, he stated that no blood stained earth was seized from the place of occurrence. He did not examine the shop-owners on both the sides of the road. He did not examine anyone of the Gouranga Hotel. 24. Evidence of the eyewitnesses, P.Ws. 2 to 6 and 10 has been criticized by Mr. Chatterjee on the ground that they are chance witnesses. He did not examine the shop-owners on both the sides of the road. He did not examine anyone of the Gouranga Hotel. 24. Evidence of the eyewitnesses, P.Ws. 2 to 6 and 10 has been criticized by Mr. Chatterjee on the ground that they are chance witnesses. He emphasized, the prosecution has not examined the most probable witnesses, namely, the shop-owners in and around the Mini Truck Stand. Hence the prosecution case is a concocted one and founded on unreliable evidence. It is also argued that the place of occurrence has not been fixed. 25. Upon deeper scrutiny of the evidence of the eyewitnesses we find that each of the witnesses has explained the circumstances in which they were present at the place of occurrence. 26. P.W. 2 stated that he came to collect clothes from the shop behind the Mini Truck Stand while P.W. 4 is the owner of a luxury taxi and, therefore, his presence near the Mini Truck Stand is quite plausible. P.W. 4 stated that he had come to the laundry at the Truck Stand. P.Ws. 5 and 6 also explained their presence at the place of occurrence for making purchase from a medicine shop or collecting printed papers from a Xerox Printing Shop respectively. P.W. 10 is the owner of a mini truck and his presence at the place of occurrence is most probable. 27. In view of the aforesaid explanations offered by the witnesses, I am of the opinion, their presence at the place of occurrence is quite natural in the ordinary course of events. They have no enmity with the appellants. Nor are they related to the victim. They are disinterested witnesses. Their depositions are consistent to one another and do not suffer from any patent contradiction or improbability. All the witnesses were extensively cross- examined and have withstood such examination. Hence, I have no doubt in my mind that the aforesaid eyewitnesses are reliable and trustworthy in nature. In this backdrop, non-examination of the local shop-owners do not affect the unfolding of the prosecution case or render it unreliable in any manner whatsoever. Furthermore, the version of the prosecution witnesses find corroboration from the injuries noted by the medical witnesses, namely, P.Ws. 7, 11 and 12. All these witnesses found severe injury on the right side of the head of the victim resulting in fracture and extensive internal haemorrhage. Furthermore, the version of the prosecution witnesses find corroboration from the injuries noted by the medical witnesses, namely, P.Ws. 7, 11 and 12. All these witnesses found severe injury on the right side of the head of the victim resulting in fracture and extensive internal haemorrhage. They also deposed that such injury could be caused by the iron pati, which was seized in the instant case. 28. Thus, the ocular version of the eyewitnesses has been squarely corroborated by the medical witnesses. 29. Place of occurrence has also been established through the evidence of eye witnesses. All of them stated Shakti was assaulted near Mini Truck Stand and he fell in front of Gouranga Hotel which was almost adjacent to the truck stand being 60/70 cubits away. Thus, there is no shifting of the place of occurrence. Under such circumstances, non-seizure of blood stained earth by investigating officer is a defect in investigation which does not affect the credibility of the prosecution case. 30. With regard to the submission, there is variation between the description of the weapon of offence by the eyewitnesses and the one seized in the course of investigation, I am of the opinion that the same is without substance. The eyewitnesses claimed the weapon was an iron pati or a flat iron rod. P.W. 15 on the showing of the first appellant had recovered an iron pati as per seizure list (Exhibit 3/1). The medical witnesses unequivocally stated that the seized weapon of offence could be used to cause the injury found on the deceased. In this backdrop, I am of the view the seized weapon (material Exhibit 1) was the weapon of offence and there is no inconsistency in the prosecution case on this score. 31. Hence, I am of the opinion, the prosecution has been able to prove that the appellants being enraged by the resistance held out by the victim against their immoral conduct of teasing girls in course of a Puja, had rushed to a local shop wherefrom they collected the iron pati and surrounded the victim. Thereafter, on the instruction of the second appellant the first appellant hit the victim on the head causing fracture injury on the head and extensive internal hemorrhage. Thereafter, on the instruction of the second appellant the first appellant hit the victim on the head causing fracture injury on the head and extensive internal hemorrhage. In this backdrop, the acquittal of Sofiar from whose shop the weapon of offence had been recovered does not affect the culpability of the appellants in the murder of the deceased. 32. Lastly, it has been argued that the appellants did not intend to commit the murder. The second appellant had not assaulted the deceased whereas the first appellant had dealt only a single blow. Thus, the conviction may be altered to culpable homicide not amounting to murder. I am unable to accede to such prayer also for the following reasons:- (a) Incident not occur in the course of a sudden fight or quarrel. On the other hand, the appellants were teasing girls who had come to attend Biswakarma Puja. Shankar Kanrar protested against such immoral and undesirable conduct of the appellants. This was the motive of the appellants to commit the murder. Objection held out by the deceased to the anti-social activities of the appellant cannot by any stretch of imagination be construed as a sudden fight or quarrel between the parties. (b) Offence was not without premeditation. Upon being enraged by the resistance held out by the victim against their anti-social conduct, the appellants rushed to the shop of one Sofiar, collected an iron pati and returned to the spot and surrounded the victim. Thereafter, on the instruction of the second appellant the first appellant assaulted the victim on the head with such force that it caused severe fracture wound as well as extensive internal hemorrhage in the brain. A premeditated murderous assault by the appellant on the victim to avenge their grudge against the latter who had objected to their immoral activities cannot fall within Exception 4 of section 300 of the Indian Penal Code. (c) It is true that the appellants had dealt a single blow and the victim had survived for three days. Hence, they had no intention to commit murder. Number of blows on a victim is not the only parameter to determine the intention of the assailants. In the present case, the assailants had gone to the shop of Sofiar and returned with the weapon of offence. Thereafter, the first appellant assaulted on the head with the iron pati on the instruction of the second appellant. Number of blows on a victim is not the only parameter to determine the intention of the assailants. In the present case, the assailants had gone to the shop of Sofiar and returned with the weapon of offence. Thereafter, the first appellant assaulted on the head with the iron pati on the instruction of the second appellant. The strike was with a dangerous weapon and on the vital part of the body. It was with such intense force that it caused injuries, which P.W. 12 opined, was sufficient in ordinary course of nature to cause death. In Virsa Singh vs. State of Punjab, AIR 1958 SC 465 the Apex Court held in the event, the injury caused by the accused is intentional and is sufficient in ordinary course of nature to cause death, the case will fall within clause (3) of Section 300 of the Indian Penal Code which runs as follows:- 'Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,......' In the light of the aforesaid proposition of law and of the opinion of the post-mortem doctor, I have no hesitation to hold that the case falls within the aforesaid clause under Section 300 IPC and is punishable under Section 302 of the IPC. (d) With regard to the role of the second appellant, I am of the opinion his conduct before, during and after the incident clearly shows that he shared common intention to murder with the first appellant. He along with the first appellant was teasing girls. When the victim opposed their conduct, he along with first appellant rushed to the shop of Sofiar to collect the weapon of offence. Then they came to the spot together and upon his instruction, Khokon i.e. the first appellant, struck at the victim which was sufficient in the ordinary course of nature to cause death. Thereafter, both of them fled the spot together. 33. In this backdrop, I am of the opinion that the conviction and sentence of the appellants are liable to be upheld. 34. Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon the appellants in terms of Section 428 of the Code of Criminal Procedure. 35. 33. In this backdrop, I am of the opinion that the conviction and sentence of the appellants are liable to be upheld. 34. Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon the appellants in terms of Section 428 of the Code of Criminal Procedure. 35. The appeal being CRA 312 of 2004 accordingly stand dismissed. 36. In view of the dismissal of the appeal, connected applications, if any, are also disposed of. 37. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. 38. 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.