Research › Search › Judgment

Calcutta High Court · body

2022 DIGILAW 340 (CAL)

Sukumar Das v. State Of West Bengal

2022-03-03

BIBEK CHAUDHURI

body2022
JUDGMENT Bibek Chaudhuri, J. - This is an appeal against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, 5th Court at Malda in Sessions Trial No. 32 of 2017 arising out of Sessions Case No. 51 of 2017 convicting the appellant under Sections 325 and 307 of the Indian Penal Code. Thereafter the learned Trial Judge handed down punishment of rigorous imprisonment for five years with fine and default clauses for the offence punishable under Section 325 of the Indian Penal Code and rigorous imprisonment for seven years with fine and default clauses for committing offence punishable under Section 307 of the Indian Penal Code. 2. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the convict has preferred the instant appeal. 3. Learned advocate for the appellant has assailed the impugned judgment and order on the ground that the Court below did not consider delay in lodging the F.I.R. The incident took place on 17th November, 2012 and the F.I.R. was lodged on 19th November, 2012. There is no explanation of delay in lodging the F.I.R. but the de facto complainant. 4. Secondly, it is urged by the learned counsel for the appellant that in the vicinity and closest proximity of the place of occurrence the house of Hararam Das, Khitish Pramanik, Akhil Das, Arun Das and a temple are situated. The prosecution failed to examine any of the above-named nearest neighbours to the place of occurrence during trial of the case. 5. Practically, the Investigating Officer did not even examine the said witnesses. According to the learned advocate for the appellant they are the best natural witnesses of the alleged incident but they are not examined. 6. Thirdly, it is submitted by the learned advocate for the appellant that the de facto complainant tried to exonerate the case by naming five persons in the F.I.R. From the evidence on record it is ascertained that all the witnesses who allegedly came to the place of occurrence after the incident and the victim also, the complicity of appellant Sukumar Das is present. In view of such exaggeration in the F.I.R., the narration of the alleged incident cannot be expected as true narration of the incident. 7. In view of such exaggeration in the F.I.R., the narration of the alleged incident cannot be expected as true narration of the incident. 7. Furthermore, the manner of the incident as stated by P.W.5/Sakti Das who is the victim of this case is at variance with the story made out in the F.I.R. According to the injured (P.W.5) he had a mini tubewell at the relevant point of time and he used to supply irrigation water in the landed property of Sukumar Das. Sukumar Das told him to come to his house on the date of occurrence at about 11 p.m. to take money for supplying water in his agricultural field. The de facto complainant, however, stated in his evidence that P.W. 5 was called by the accused person to the house of Sukumar Das and he was assaulted there with the help of iron rod. 8. It is submitted by the learned advocate for the appellant that in a criminal case time of occurrence is absolutely important. He draws my attention to the evidence of P.W.3, the de facto complainant and P.W.5, injured person. Both of them stated that the alleged incident took place on 17th November, 2012 at about 11 p.m. P.W.1, P.W.2 and P.W.4 claimed themselves to be the local witnesses who reached in the place of occurrence immediately after the incident. They saw the victim lying with a bleeding injury on his head in the house of the appellant. According to P.W.2 the incident took place at about 12 at midnight. The medical officer (P.W.7), on the other hand, recorded the time when the victim received injury as on 17th November, 2012 at 9 p.m. He medically examined the patient on 18th November, 2012 at about 4:10 p.m. 9. Therefore, there is big discrepancy as to the specific time when the incident took place. Furthermore, the patient party stated the name of the appellant in the injury report and the medical officer only recorded that the victim was injured by 'lathi' in the relevant column of history of injury. 10. It is also submitted by the learned counsel for the appellant that in the F.I.R. as well as the evidence adduced by the witnesses about the prosecution. The Upa Pradhan of local Panchayat namely, Ashraful Hossain took the leading role to save the victim. 10. It is also submitted by the learned counsel for the appellant that in the F.I.R. as well as the evidence adduced by the witnesses about the prosecution. The Upa Pradhan of local Panchayat namely, Ashraful Hossain took the leading role to save the victim. He scolded the assailant and then made arrangement for transmitting the victim to the hospital for non-examination of the said Ashraful Hossain and non-production of seized blood stained wearing apparels and bedding of the victim, the defence was entitled to get the benefit of the law of presumption under Section 114G of the Indian Evidence Act. 11. It is contended by the learned counsel for the appellant that the prosecution withheld the best evidence. Therefore, the defence is entitled to get the presumption that if the best evidence was produced, it would negate the truthfulness of the prosecution case. 12. Learned advocate for the appellant in support of his argument refers to a decision of the Hon'ble Supreme Court in the case of State of Uttarakhand vs. Jairnail Singh reported in AIR 2017 SC 5353 . The aforesaid report relates to appreciation of evidence in case of infirmity found in the evidence of the so-called eye witnesses. The fact of the said reported decision is that the victim and his two brothers were the eye witnesses and the accused was known to them but neither the victim nor his brothers mentioned the name of the assailant to the Medical Officer. In the instant case also neither the victim nor the so-called eye witnesses did not mention the name of the appellant as the assailant of P.W.5. On the point of having statutory presumption by the accused in case of withdrawal of the best evidence under Section 114 (G) of the Evidence Act the learned advocate refers to a decision of the Hon'ble Supreme Court in the case of Tomaso Bruno vs. State of U.P. reported in (2015) 7 SCC 178 . The learned advocate for the appellant also refers to another decision of the Hon'ble Supreme Court in the case of Amrish Rana vs. State of Himachal Pradesh reported in AIR 2018 SC 4604 . This report is also in relation to contradiction in stating the name of the accused before the Investigating Officer. He also refers to a very recent decision of this Court in the case of Shib Shankar Das and Ors. This report is also in relation to contradiction in stating the name of the accused before the Investigating Officer. He also refers to a very recent decision of this Court in the case of Shib Shankar Das and Ors. vs. State of West Bengal in CRA 219 of 1987 decided on 14th February, 2022. 13. Learned P.P.-in-Charge, on the other hand, submits that P.W.5 who is the injured person, is the eye witness of the occurrence. Other witnesses namely P.W.4, P.W.1, P.W.2 and P.W.8 reached the spot after the incident. Therefore, they did not see who assaulted the victim. 14. However, the victim's evidence ought to be regarded in order to ascertain as to who committed the offence of grievous hurt upon him. 15. On the question of injury, it is submitted by the learned P.P.-in-charge that though the concerned Medical Officer was not examined, the Investigating Officer submitted series of medical papers from where it can be ascertained that the injured received acute subdural haematoma with contusion on the left temporo-parietal region of the head. The injured was operated twice. First there was left fronto-temporo-parietal craniotomy and evacuation of acute subdural haematoma and contusion done. Then Tracheostomy was done and the patient was recovered from his injury. The learned trial Judge held the appellant guilty for committing offence under Section 325/307 of the Indian Penal Code. 16. With regard to the charge under Section 307 of the Indian Penal Code I like to record that the evidence is absolutely silent to the effect that the victim was assaulted with the attempt to commit murder of the victim. 17. Culpable intention of an offence can be ascertained when an accused first intends to commit the offence. The second stage is the preparation to commit the offence and thereafter attempts to commit the same. When attempt is successful, the offence is committed, on the other hand, in respect of some offences relating to bodily injury if the offender fails due to reasons beyond his control, he has said to have attempted to commit the offence when he becomes successful, the offence is committed. Attempt to commit an offence can be said to begin when the preparations are complete and the offender commences to do something with the intention of committing the offence and which is a step towards the commission of offence. Attempt to commit an offence can be said to begin when the preparations are complete and the offender commences to do something with the intention of committing the offence and which is a step towards the commission of offence. The moment he commences to do an act with necessary intention, he commences his attempt to commit the offence. The word 'attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provision of Section 511 requires. 18. To justify a conviction under Section 307 of the IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. 19. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 IPC. 20. 19. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 IPC. 20. In the instant case, there is absolutely no evidence that the appellant had the intention to cause death of the victim. There is also no evidence that he had the requisite knowledge that the assault inflicted by him upon the victim might have caused death of the victim in ordinary course of nature. The material on record also discloses that the victim is an accused in a case under Section 376 of the IPC initiated upon a complaint submitted by the mother of the appellant. Therefore, the intention of the accused might be to assault the victim for the offence allegedly committed by him. 21. Therefore, I do not find any ingredient of offence under Section 307 of the IPC against the accused appellant. 22. With regard to the conviction it is recorded that the Medical Officer of Dr. Chhang's Super Specialty Hospital Private Limited found subdural haematoma with contusion on left temporo-parietal region of the head. 23. Thus, there was no fracture of skull of the victim. Subdural haematoma was caused inside the brain which was evacuated by craniotomy. 24. Section 320 of the Indian Penal Code provides a list of injury occurrence of which is termed to be grievous. 25. Section 320 of the Indian Penal Code reads thus:- '320. Grievous hurt.- The following kinds of hurt only are designated as 'grievous':- First.- Emasculation. Secondly.- Permanent privation of the sight of either eye. Thirdly.- Permanent privation of the hearing of either ear, Fourthly.- Privation of any member or joint. Fifthly.- Destruction or permanent impairing of the powers of any member or joint. Sixthly.- Permanent disfiguration of the head or face. Seventhly.- Fracture or dislocation of a bone or tooth. Eighthly.- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.' 26. On careful perusal of the evidence on record specially the injury report I do not find any of the above injuries delineated in Section 320 of the Indian Penal Code was caused to the victim. 27. On careful perusal of the evidence on record specially the injury report I do not find any of the above injuries delineated in Section 320 of the Indian Penal Code was caused to the victim. 27. At the same time, I am not unmindful to note that the evidence of the injured witness assumes greater weight than others because the injured witness is not an accomplished and he will not implicate any person other than the real offender in a case of assault. Though P.W.4, 28. P.W.1, P.W.2 and P.W.8 came to the spot after the victim was assaulted, all of them stated on oath that the appellant caused hurt to the victim. 29. Of course, there are certain contradictions on the nature of the weapon used. Somebody stated on oath that the victim was assaulted by iron rod, while others stated on oath that he was assaulted by a 'lathi'. Be that as it may, the victim was assaulted by a blunt object causing subdural haematoma with contusion over his head. Relying on evidence of the victim I can safely conclude that during trial the prosecution was able to prove that the appellant caused hurt to the victim. However, the nature of hurt is not grievous and no evidence with regard to intention to commit murder of Sakti Das (P.W.5) is forthcoming in the evidence on record. Thus, this Court is of the view that the accused ought to be convicted for committing offence under Section 323 of the Indian Penal Code. 30. Therefore, the conviction under Section 325/307 of the Indian Penal Code passed by the learned trial Judge is set aside. 31. So far as sentence punishable under Section 323 of the Indian Penal Code, this Court is of the view that the incident took place on 17th November, 2012. The appellant is fighting legal battle for the last ten years. Thus, considering both aggravated and mitigating circumstances this Court is of the view that imposition of fine as provided under Section 323 of the Indian Penal Code shall be just and proper punishment to the appellant. 32. Accordingly, the appellant is convicted under Section 323 of the Indian Penal Code and sentenced to pay fine of Rs.1,000/-, in default, simple imprisonment for three months. 33. The appeal and the connected application are thus disposed of on contest. 34. 32. Accordingly, the appellant is convicted under Section 323 of the Indian Penal Code and sentenced to pay fine of Rs.1,000/-, in default, simple imprisonment for three months. 33. The appeal and the connected application are thus disposed of on contest. 34. The appellant is directed to surrender before the court of the learned Chief Judicial Magistrate, Malda to suffer sentence within three weeks from the date of communication of the order alongwith lower court record. A copy of this judgment be handed over to the accused free of cost.