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2024 DIGILAW 1357 (CAL)

Chuiya @ Binod Mahato v. State of West Bengal

2024-07-31

PARTHA SARATHI SEN

body2024
JUDGMENT : (Partha Sarathi Sen, J.) : 1. In this appeal the judgement of conviction and order of sentence dated 21.01.2009 as passed in Sessions Trial No.10 of 2007 arising out of Sessions Case No.79 of 2006 by the learned Additional Sessions Judge, 1st Court Asansol, District Paschim Burdwan has been assailed. By the impugned judgement and order the trial court found the accused Chuiya @ Binod Mahato (the appellant herein) guilty of offence under Section 304 Part II IPC and thus sentenced him to suffer R.I for seven years and to pay fine of Rs.10,000/-i.d to suffer R.I for five months more. 2. The convict felt aggrieved and preferred the instant appeal. 3. For effective disposal of the instant appeal the facts leading to initiation of the aforesaid Sessions trial is required to be dealt with in a nutshell. 4. One Parbati Shaw, wife of Naresh Shaw of Rail par, Depo Para (Chai rasta), Asansol (North) lodged a written complaint dated 12.08.2000 with the O/C Asansol (North) P.S stating inter alia, that on 11.08.2000 at about 1:00 p.m her husband was supervising the construction of brick built boundary wall and at that time one Chuiya son of Bideshi Mahato pulled down the said boundary wall. Consequently an altercation took place between her husband and the said Chuiya and immediately thereafter the said Chuiya and his brother Kanchaiya started beating her husband with stick and rod. It has been stated further in the said written complaint that on account of such assault her husband sustained bleeding injury on his head and he fell down on earth. The informant rushed to the spot and raised alarm and thereafter the assailants fled away and immediately thereafter the victim was brought to Asansol Sub-divisional Hospital where he was admitted for treatment. 5. On the basis of such written complaint Asansol P.S case no.80 of 2000 dated 12.08.2000 under Sections 341/325 IPC was started. Subsequently the victim of the said assault succumbed to his injuries and thus Section 304 IPC was added. 6. Investigation was taken up and on completion of the same charge sheet under Sections 341/325/304 IPC was submitted against the present appellant. After commitment and transfer, the trial court considered the charges against the accused and framed charges under Sections 341/304 IPC against the accused on 28.11.2006. 7. 6. Investigation was taken up and on completion of the same charge sheet under Sections 341/325/304 IPC was submitted against the present appellant. After commitment and transfer, the trial court considered the charges against the accused and framed charges under Sections 341/304 IPC against the accused on 28.11.2006. 7. In order to prove the charges as against the accused the prosecution has examined 11 witnesses in all and several documents have been exhibited on their behalf. Trial court record reveals that the defence has chosen not to adduce evidence but from the trend of cross examination and the answers as given by the accused under Section 313 CrPC it appears that the defence case is based on clear denial and false implication. 8. For convenience a brief description of the prosecution witnesses are necessary and those are as under:- a. PW1-A medical officer posted at Asansol Sub-divisional Hospital at the relevant time and who admitted the victim on 11.08.2000. b. PW2-A resident of Gopalnagar, Rail par who has been declared hostile by the prosecution. c. PW3-An autopsy surgeon who performed post mortem examination over the dead body of the deceased. d. PW4-Another medical officer of Asansol Sub-divisional Hospital who readmitted the victim on 13.08.2000. e. PW5-The informant and the wife of the deceased. f. PW6-A resident of the locality of the deceased and the informant. g. PW7-A resident of Gopalnagar area, a rickshaw puller who took the victim on 11.08.2000 to Asansol Sub-divisional Hospital. h. PW8-Recording Officer. i. PW9-The scribe of the written complaint. j. PW10-A constable of police who took the dead body of the deceased for post mortem examination to the morgue. k. PW11-The Investigating Officer. 9. Mr. Tapas Kr. Ghosh, learned advocate duly assisted by Mr. Tanmay Chowdhury, learned advocate for the appellant draws attention of this Court to the evidence of PW1 vis-à-vis Exhibit 1 being the injury report of the deceased. It is submitted that from the oral evidence of PW1 and the documentary evidence being Exhibit 1 it would reveal that on 11.08.2000 at about 1:00 p.m. the deceased was brought to the hospital and he was admitted at about 2:00p.m. and at that time the patient narrated history of assault. It is submitted that in the deposition of PW1 as well as in the Exhibit 1 the name of the assailant has not been mentioned. It is submitted that in the deposition of PW1 as well as in the Exhibit 1 the name of the assailant has not been mentioned. It is submitted that on behalf of the prosecution no plausible explanation could be advanced as to why at the earliest opportunity the name of the assailant was not taken either by the victim or by the informant before PW1. 10. Drawing attention to the evidence of PW1, PW3 and PW4 it is further submitted by Mr. Ghosh that on conjoint perusal of the evidence of the aforesaid three prosecution witnesses who are the doctors of Asansol Sub-divisional Hospital it would reveal that PW1 at the stage of admission of the patient on 11.08.2000 found cut injury on the scalp of the patient measuring about ½ X1 inch and puncture wound both in upper and lower lips. However PW3 in his autopsy report did not notice any such cut injury and/or puncture wound. It is further submitted by Mr. Ghosh that on comparative study of evidence of PW1 and PW4 it would reveal further that though the said patient was admitted on 11.08.2000 at about 2:00 p.m at Asansol Sub-divisional Hospital but he was referred to Burdwan Medical College and Hospital on 12.08.2000 at 08:15 p.m. and again on 13.08.2000 the said patient was readmitted in the self same sub-divisional hospital at 6:55 p.m. It is submitted by Mr. Ghosh that it has not been brought on record by the prosecution as to what happened with the patient in between 8:15 p.m of 12.08.2000 and 6:55 p.m. of 13.08.2000. 11. It is further submitted by Mr. Ghosh that from the post mortem report it would reveal that PW3 being the Autopsy Surgeon found fracture on the left side of the skull of the deceased measuring about 4 inch in size but from the deposition of PW1 vis-à-vis Exhibit 1 there is no clinical finding with regard to the said fracture of skull of the patient. It is thus submitted by Mr. Ghosh, learned advocate for the appellant that in view of such factual situation learned trial court ought not to have held that the fracture of the skull of the deceased was caused by the alleged assault of the appellant on 11.08.2000. It is further submitted by Mr. It is thus submitted by Mr. Ghosh, learned advocate for the appellant that in view of such factual situation learned trial court ought not to have held that the fracture of the skull of the deceased was caused by the alleged assault of the appellant on 11.08.2000. It is further submitted by Mr. Ghosh that the post mortem report being Exhibit 3 is faulty inasmuch as there is no whisper of any cut injury on the scalp of the deceased though PW1 found such injury on 11.08.2000 which is explicit from the oral evidence of PW1 vis-à-vis injury report of the victim i.e. Exhibit 1. Drawing attention to evidence of PW5 (informant) and PW9 (the scribe) it is submitted that the respective depositions of PW5 and PW8 with regard to the writing of the written complaint are contradictory inasmuch as PW5 in her examination-in-chief stated that on 12.08.2000 PW9 wrote the written complaint as per her instruction which was read over and explained to her and thereafter she put her LTI on the said complaint and thereafter the said compliant was given to the police. It is argued that from the cross-examination of PW5 it would reveal however that it is the version of PW5 that on the relevant day PW9 took LTI on a written paper over which she has got no knowledge about its contents and that she met PW9 in the hospital one day after the incident. It is further argued by Mr. Ghosh that from the cross-examination of PW9 (scribe) it would reveal however that on the day of lodging of FIR i.e. 12.08.2000 he went to the said P.S for his personal business and as per asking of the Darogababu of the said P.S he wrote the petition of complaint. Mr. Ghosh thus submits that there is a variance with regard to the place and contents of writing of the written compliant which materially affects the genuineness of the allegation made in the written complaint. 12. Drawing attention to the last part of cross-examination of PW5 it is submitted by Mr. Ghosh that PW5 in her cross-examination categorically stated that on the day of incident police came to the P.O at 1 p.m and her statement was recorded by the police though she did not put her LTI on such statement. It is submitted by Mr. Drawing attention to the last part of cross-examination of PW5 it is submitted by Mr. Ghosh that PW5 in her cross-examination categorically stated that on the day of incident police came to the P.O at 1 p.m and her statement was recorded by the police though she did not put her LTI on such statement. It is submitted by Mr. Ghsoh that in the event such version of PW5 is believed it may be presumed that the complaint with regard to the alleged incident was obtained by the police on the day of the incident i.e. on 11.08.2000 at about 1 p.m and there is no explanation from the prosecution as to why no FIR was lodged on the basis of such statement of PW5 which again raises a doubt regarding the genuineness of the case of the prosecution. Mr. Ghosh thus submits that it is a fit case for allowing the instant appeal after setting aside the impugned judgement. 13. Per contra, Ms. Faria Hossain, learned Additional Public Prosecutor for the State submits before this Court that there are no inconsistencies in the evidence of PW1, PW3 and PW4. It is submitted by Ms. Faria Hossain that if the depositions of the aforesaid three witnesses are considered along with Exhibit 1, Exhibit 2/1 and Exhibit 3 as well as Exhibit 4 it would reveal that the testimonies of the medical officers of the said hospital are no way contradictory and on the contrary they are found to be in conformity with each other. It is further submitted on behalf of the State that in the event the evidence of PW5 (informant) is scrutinized in the light of the testimonies of PW1, PW3 and PW4 it would reveal that evidence of PW5 gets due corroboration from those testimonies and thus learned trial court is very much justified in holding that the victim of the alleged incident died on account of assault on head by the present appellant. 14. Since in the trial court record as well as in the impugned judgement the evidence of the prosecution witnesses have been discussed elaborately I do not find any necessity to discuss those evidence all over again in detail except to the extent it is necessary for the disposal of the instant appeal. 15. 14. Since in the trial court record as well as in the impugned judgement the evidence of the prosecution witnesses have been discussed elaborately I do not find any necessity to discuss those evidence all over again in detail except to the extent it is necessary for the disposal of the instant appeal. 15. As discussed supra, from the evidence of PW5 it reveals that on the relevant day and hour when the victim was supervising the construction of the boundary wall he was assaulted by a bamboo stick by the present appellant. From the evidence of PW1 i.e. the doctor of Asansol Sub-divisional Hospital it reveals that at about 1p.m the patient was brought to him and before him the patient narrated the history of assault and on the self same day the patient was admitted under him. As rightly pointed out by Mr. Ghosh that though at that material time the patient was conscious with regard to the assault as suffered by him but neither he nor his wife (the informant) mentioned the name of the assailant before the said doctor i.e. PW1. From the evidence of PW4 it reveals further that on the subsequent day i.e. on 12.08.2000 the said patient was referred to Burdwan Medical College and Hospital at 8:15 p.m but he was readmitted on 13.08.2000 at 6:55 p.m. in the self same sub-divisional hospital. As rightly pointed out by Mr. Ghosh no material and/or explanation is forthcoming as to what happened with the victim in between 8:15 p.m. of 12.08.2000 and 6:55 p.m of 13.08.2000 and as to what prevented the informant to take the victim to the Burdwan Medical College and Hospital. 16. From the injury report of the victim dated 11.08.2000 I find no clinical finding or any investigation report regarding the fracture of the skull of the deceased though the autopsy surgeon being PW3 found such fracture while conducting post mortem. This court considers that non-explanation of time gap of 22 hours in between 12.08.2000 and 13.08.2000 regarding the treatment of the deceased has become very fatal in view of the fact that on account of such non-explanation it cannot be said inconclusively that the fracture on the skull of the deceased occurred due to the alleged assault of stick by the present appellant. 17. 17. It is trite law that FIR is not considered as a substantive piece of evidence however it can be used to corroborate or contradict the informant’s evidence in Court as held in the case of Munshi Prasad and Ors. vs. State of Bihar reported in (2000) SCC (Cri) 175 as well as in the State of Bombay vs. Rosy Mistry reported in AIR 1960 SC 391 . Keeping in mind the proposition of law as enunciated in the aforesaid two reported decisions if I look to the testimonies of PW5 and PW9 it appears to this Court that it is the version of PW5 (the informant) that she met PW9 (the scribe) on 12.08.2000 in the hospital while PW9 in his deposition testified the written complaint was lodged on the self same day at P.S where he first time met PW5. It appears further that though PW5 in her examination-in-chief stated that after writing of the written complaint the same was read over and explained to her by PW9 however in the cross-examination she admitted that she had no knowledge about the contents of the said written complaint. In view of such, this Court finds material contradiction in the version of PW5 and PW9 which definitely affects the genuineness of the case of the prosecution. 18. On analysis of the evidence of prosecution witnesses as discussed supra it thus appears to this Court that with regard to the cause of death of the deceased two views are possible namely; The death of the deceased occurred due to fracture on account of assault by a stick by the assailant and The other view is that there is total non explanation as to what happened with the patient in the time gap of 22 hours i.e. from 8:15p.m of 12.08.2000 to 6:55p.m of 13.08.2000. Since no material has been placed before the trial court that during the said period the patient was at all admitted in any hospital or not and therefore a doubt arises as to whether the fracture of skull occurred on account of the alleged assault by the assailant especially when there is no clear finding in the injury report (Exhibit 1) of the victim with regard to the said fracture of skull. 19. At this juncture I propose to place reliance upon a reported decision of State of Rajasthan Vs. 19. At this juncture I propose to place reliance upon a reported decision of State of Rajasthan Vs. Raja Ram reported in (2003) 8 SCC 180 wherein the Hon’ble Apex Court dealt with the effect of two possible views in a criminal trial in the following manner:- “The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 20. In the facts and circumstance as discussed supra it thus appears to this Court that in the case in hand also since two views are possible one is with regard to the involvement of the present appellant in the alleged crime and the other is the possibility of obtaining further injury during the time gap of 22 hours as discussed supra, I am therefore of the view that the appellant is entitled to get benefit of doubt in view of the above dictum of the Hon’ble Supreme Court. This Court thus finds that the view which is in favour of the appellant ought to have been accepted. 21. As a result the instant appeal is allowed. 22. Consequently, the judgement of conviction and order of sentence dated 21.01.2009 as passed in Sessions Trial No.10 of 2007 arising out of Sessions Case No.79 of 2006 by the learned Additional Sessions Judge, Fast Track court Asansol, District Paschim Burdwan is hereby set aside. 23. The appellant Chuiya @ Binod Mahato is thus found not guilty under Section 304(2) IPC in connection with the aforementioned case. 24. The appellant Chuiya @ Binod Mahato is thus discharged from his bail bond and be set at liberty at once if, not wanted in connection with any other case. 25. Department is directed to forward a copy of this judgement to the learned trial court along with the LCR forthwith. 26. Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on completion of usual formalities.