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2024 DIGILAW 544 (CAL)

Kailash Mahata v. State of West Bengal

2024-03-12

ANANYA BANDYOPADHYAY

body2024
JUDGMENT : Ananya Bandyopadhyay, J. 1. This appeal is preferred against the judgment and order dated 22.04.2013 and 23.04.2013 respectively passed by the Learned Additional District and Sessions Judge, Raghunathpur, District – Purulia in Sessions Trial No. 12 of 2011 arising out of Sessions Case No. 265 of 2006 convicting the appellants for commission of offence punishable under Section 325/304/34 of the Indian Penal Code and sentencing them to undergo simple imprisonment for the offence punishable under Section 323 of the Indian Penal Code and convicting for the offence punishable under Sections 304(II)/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for 7 years with fine of Rs. 5000/-in default of whereof 1 year more rigorous imprisonment with the direction that both the sentences shall run concurrently. 2. The prosecution case in brief was that – a) On 01.12.2002 at about 06:00 a.m. one Purabala Mahata went to Chaudhury Bandh Pukur for washing her hands and face, at more or less the same time one Thandmoni Mahata came to the spot and an altercation followed between the two and when such altercation was going on the appellants came to the place of occurrence and started assaulting the said Purabala with “Lathi”. b) When the appellants were assaulting Purabala, Haren Mahata, the de-facto complainant Fatik Chandra Mahata and his son Bikash Mahata came to the spot on hearing the hue and cry raised by Purabala. c) The said Fatik Chandra Mahata, Haren Mahata and Bikash Mahata tried to rescue and save the said Purabala Mahata. d) The appellants assaulted Fatik Chandra Mahata, his son Bikash Mahata and his brother Haren Mahata with Lathi etc. As a result Purabala and Haren Mahata sustained severe bleeding injuries. e) The de-facto complainant Fatik Chandra Mahata and his son Bikash also sustained injury. Injured Fatik and Purabala were medically treated in the Santaldih Thermal Power Hospital. The injury of Haren Mahata was serious in nature and he had to be referred to Bokaro Hospital where he succumbed to his injuries on 10.12.2002. f) Based on the complaint lodged by de-facto complainant Fatik Mahata, Santaldih P.S. Case No. 40 of 2002 dated 01.12.2002 under Section 341/323/325/506 of the Indian Penal Code was initiated. g) Thereafter police investigated the case and submitted Charge-Sheet against the accused persons under Sections 341/323/325/304/506 of the Indian Penal Code. f) Based on the complaint lodged by de-facto complainant Fatik Mahata, Santaldih P.S. Case No. 40 of 2002 dated 01.12.2002 under Section 341/323/325/506 of the Indian Penal Code was initiated. g) Thereafter police investigated the case and submitted Charge-Sheet against the accused persons under Sections 341/323/325/304/506 of the Indian Penal Code. h) Charges were framed against the appellants to which they pleaded not guilty and claimed to be tried. i) The Learned Additional Sessions Judge, Raghunathpur, Purulia upon a full dressed trial and contested hearing was pleased to acquit one of the accused, Thandamoni, under Section 235(1) of the Code of Criminal Procedure and convicted the other appellants persons namely Kailash Mahata, Rabin Mahata, Bijay Mahata and Satish Mahata under Sections 323/304 (II)/34 of the Indian Penal code and accordingly the said accused persons were taken into custody. j) The prosecution in order to prove its case cited seven witnesses and exhibited certain documents. 3. Learned Advocate for the appellants submitted that – i. The accused persons were acting in exercise of their right of self-defence after having observed that there was a free fight between the two groups. ii. The F.I.R was sent to the Learned Magistrate after fifteen days and not immediately important documents were not exhibited. iii. The circumstances of the case had shown that the right of self defence was legitimately exercised in the light of the fact that there was an open fight between the appellants and the de-facto complainant and his associates. iv. Learned Sessions Judge erred in law in failing to give due weight to the evidence of the PW-1 who turned hostile after having observed that nothing reliable came out from his mouth to support the prosecution case although he had been cross examined by the prosecution, with the permission of the Learned Court. v. Learned Sessions Judge committed a grave error of law in convicting the accused persons after having held that there was discrepancy between the F.I.R. and the deposition of PW-2, PW-3, PW-4 and PW-5. vi. Learned Sessions Judge committed a grave error in holding that the appellants were aggressors inasmuch as some of the accused persons were admitted to the Thermal Power Hospital over the self same incident. vii. The injury report and post mortem report ought to have been proved. viii. vi. Learned Sessions Judge committed a grave error in holding that the appellants were aggressors inasmuch as some of the accused persons were admitted to the Thermal Power Hospital over the self same incident. vii. The injury report and post mortem report ought to have been proved. viii. Learned Sessions Judge committed a grave error of law in convicting the accused persons under Section 304(II) of the Indian Penal code as neither the postmortem report of Haren Mahata was tendered in evidence nor the doctor who conducted the alleged postmortem report was examined and in the absence of both the postmortem report cannot be used as substantive evidence. ix. Learned Sessions Judge gravely erred in law in convicting the appellants in the absence of the non-examination of the investigation officer in as much as the appellants were denied the opportunity to cross-examine the Investigating officer. x. Learned Sessions Judge committed a grave error of law in holding that the instant incident originated from previous dispute between the parties although there was nothing specific in the prosecution case to indicate any previous dispute between the parties. xi. Learned Sessions Judge ought to have held that mens rea was missing in the instant case and on that score along acquitted the appellants. xii. Learned Sessions Judge erred in law in failing to appreciate the fact that all the prosecution witnesses except PW-1 who turned hostile, were interested witnesses and the Learned Sessions Judge on that score alone ought to have given the benefit of doubt to the accused appellants. xiii. Learned Sessions Judge gravely erred in law in failing to take note of the fact that the prosecution had failed to recover the alleged offending weapons from the appellants and prepare a seizure list which has rendered a fatal blow to the prosecution case. xiv. Learned Sessions Judge committed an error of law in not appreciating the fact that the evidence of the PW-7 a doctor did not relate to the injuries sustained by the deceased Haren Mahata. xv. Learned Sessions Judge gravely erred in law by relying on the case diary to come to a finding contrary to principles of law in as much as the same cannot be the basis of substantive evidence. 4. xv. Learned Sessions Judge gravely erred in law by relying on the case diary to come to a finding contrary to principles of law in as much as the same cannot be the basis of substantive evidence. 4. The Learned Advocate for the State submitted that PW-2 the injured eye witness has vividly narrated the incident of assault aptly corroborated by the evidence of PW-3, PW-4 and PW-5. The evidence of eye witnesses will gain precedence over medical evidence and therefore the appeal shall be dismissed. 5. A circumspection of the evidence of the prosecution witnesses revealed as follows:- i. PW-1 stated that he was a resident of village Ashurbandh. Accused persons were his co-villager. He knew Pura Bala, the wife of Fatik Mahata. The incident took place about 10/12 years back. He did not see the incident. On the relevant day he was not present in his house. He was returning home in the evening on the material he heard that a case was filed. He was not examined by the I.O. He declared hostile by the prosecution and the prosecution was permitted to cross examine the witness. PW-1 on cross-examination by the prosecution submitted that he did not state to the I.O that on 1.12.2002 he heard a cry of Pura Bala from Chowdhury Bandh and rushed to the pond and he saw the accused persons, namely, Kailas Mahato, Raban Mahata and Bijoy Mahato were assaulting with lathi Fatik Mahato, Haren Mahato and Bikash Mahato. Not a fact that he had concealed the truth. He was an employee of West Bengal Electricity Board. The defacto complainant Fatik Mahato is his cousin. Satish Mahata. Ganesh and Madhu are another sons of Satish Mahata, Renu is the daughter of Satish Mahata who has been married at village Jhapra under Chandakeyari P.S. accused Satish Mahata was also a service man. ii. PW-2 stated that the incident took place on 1.132.2006 at 6 a.m on that day his wife Pura Bala and Thanda Moni went to Chowdhury Bandh. Thereafter an altercation arose in between Pura Bala and Thanda Moni. Hearing a hue and cry his brother Haren Mahata rushed to Chowhdury Bandh. Thereafter the accused persons appeared at Chowdhury band and started assaulting his wife Pura Bala and they further assaulted his brother Haren Mahata. Thereafter an altercation arose in between Pura Bala and Thanda Moni. Hearing a hue and cry his brother Haren Mahata rushed to Chowhdury Bandh. Thereafter the accused persons appeared at Chowdhury band and started assaulting his wife Pura Bala and they further assaulted his brother Haren Mahata. Hearing hue and cry he also rushed to Chowdhury band at that time accused Raban and Bijoy assaulted him with a lathi for which he sustained injuries on the frontal side of his head and he also sustained fracture injury on his left hand. Bikash his son also sustained injuries as accused Raban and Bijoy assaulted him. Firstly he was treated at Santaldih Thermal Power hospital, and subsequently Raghunathpur S.D hospital and Purulia Sadar hospital. He submitted a complaint at the Santaldih P.S. One Badal Chandra Ozha scribed the complaint as per his instruction. On cross-examination he denied that the members of his family including himself were the accused in a case instituted by Kailash Mahata on the self same incident and that Kailash filed that case to the effect that his brother Bijoy Mahate was assaulted by him, Raban Mahata and, Ganesh Nahata, which case was pending before the Judicial Magistrate, Raghunathpur. He could not say whether or not Kailash, Raben and Ganesh were admitted in Thermal Power hospital over the self same incident. He did not know whether or not Ganesh Hahata was referred to Purulia Sadar hospital subsequently. He was not admitted in Purulia sadar hospital. He woke up from his sleep when his wife Pura Bala went to Chowdhury band on the material day. When his wife left his house for Chowdhury band at that time besides him, Bikash, Haren and other children were present in their house. When Haren left the house he said nothing to him at that time. Within a short while he had left the house after the departure of Haren. He also heard a hue and cry before his departure towards Chowdhury bandh. When he reached Chowdhury bandh he noticed just by the side of the water portion of the tank. He was at Chowdhurty bandh for about 10/12 minutes on that day. Immediately on reaching Chowdhury bandh he was assaulted by the accused persons. He did not lose his senses. He could not say how long the incident continued at Chowdhury bandh. When he reached Chowdhury bandh he noticed just by the side of the water portion of the tank. He was at Chowdhurty bandh for about 10/12 minutes on that day. Immediately on reaching Chowdhury bandh he was assaulted by the accused persons. He did not lose his senses. He could not say how long the incident continued at Chowdhury bandh. After the incident he got back to his home with his wife and Haren. From his house he first went to P.S they were told to go by hospital by Santaldih P.S Pura Bala and Haren was shifted to Bokaro hospital from Santaidih. Thermal power hospital. He returned to P.S. fron Santaldih Thermal power hospital before 12 noon. The complaint was drafted at the P.S. The scribe was present at the P.S. He did not mention in the complaint that on the incident his wife and Thandamoni had been to Chowdhury bandh to fetch water. It had been mentioned in the complaint that in the FIR that an altercation arose at Chowdhury bandh in between Thandamoni and his wife. iii. PW-3 stated Fatik Mahata was his father and Pura Bala was his mother. Haren Mahata was his uncle who died subsequent to the incident. On 1.12.2024 at about 6 a.m., his mother went to Chowdhury bandh. Thereafter accused Thandamoni Mahata appeared at Chowdhury bandh and quarreled with his mother. Hearing that altercation he reached Chowhdury bandh, followed by his father and his uncle. Accused persons, namely, Kailash, Raban, Bijoy and Satish assaulted his mother, father, his unlce Haren and himself with a lathi. Among the four accused persons someone assaulted him with a lathi. His uncle Haren sustained severe bleeding injuries on his person. His uncle was finally shifted to Bokaro hospital wherein he died. After the death of Haren his version was reduced in writing by Bokaro sector force. He signed on such statement. It was his village hospital. His parents were treated at Santaldih Power hospital. His mother was shifted to Bokaro hospital and was admitted therein for six days. Accused persons were present. A criminal case was started against them on the self same incident. He could not say whether or not Ganesh was treated at Thermal power hospital. He could not say whether or not Raban and Bijoy were treated at Santaldih Thermal power hospital. Accused persons were present. A criminal case was started against them on the self same incident. He could not say whether or not Ganesh was treated at Thermal power hospital. He could not say whether or not Raban and Bijoy were treated at Santaldih Thermal power hospital. The criminal case which was initiated by Kailash was pending before the Ld. Judicial Magistrate and it had been disposed of completely. On the day of the incident he accompanied his uncle Haren to Bokaro hospital. The version of Haren Mahata was reduced to writing by police of Bokaro sector force. Police took his signature on that paper. Pura Bala was admitted in that hospital at Bokaro for six days. On 10.12.2008 Haren Mahata died at Bokaro. Sector Force police after the death of Haren came to hospital and he identified the dead body to the police of Bokaro. PW-3 further stated that his father and uncle reached Chowdhury bandh after 5 minutes of his arrival. Immediately on his arrival at the spot he was assaulted by the accused parsons. He could not say whether villagers assembled there or not. Firstly he went to Thermal power hospital and followed by his parents and his uncle. He did not state to the I.O. that Bijoy assaulted him with a lathi and accused Thandabala caught hold him on that day. iv. PW-4 stated that Fatik Mahata was her husband. The incident took place on Sunday in the month of Aghrayan about nine years back. She went to bandh for washing her face along with her sister-in-law Purnima Nahata, when there was a brawl between her and Thandabala. Thereafter the accused persons assaulted her on her head with a lathi. She cried for help. At that time her eldest son, her husband and her brother-in-law Haren Mahata came to save her. Thereafter the accused persons assaulted her husband, Haren Mahata and her son with lathi. PW-4 and her husband were admitted in the hospital and Haren Mehata succumbed to his injuries at Bokaro hospital. At that material time her husband and her other two brothers were residing in separate mess. She could not say whether or not accused Thandabal was her elder sister. There was no relationship between Satish Mahata and her husband. Satish Mahata had five sons and they were adjacent neighbours and a daughter who had been married since long. At that material time her husband and her other two brothers were residing in separate mess. She could not say whether or not accused Thandabal was her elder sister. There was no relationship between Satish Mahata and her husband. Satish Mahata had five sons and they were adjacent neighbours and a daughter who had been married since long. Bijoy, Raban, Kailash were the sons of Kailash Mahata Ganesh Mahata. She could not say whether the allegation in that case was that they assaulted them on that day. She could not say whether or not Ganesh was treated at Thermal power hospital. She could not say whether or not Raban and Bijoy were treated at Santaldih Thermal power hospital. PW-4 further stated that the criminal case which was initiated by Kailash was pending before the Ld. Judicial Magistrate and it had been disposed of completely. On the day of the incident he accompanied his uncle Haren to Bokaro hospital. The version of Haren Mahata was reduced to writing by police of Bokaro sector force. Police took his signature on that paper. Pura Bala was admitted in that hospital at Bokaro for six days. On 10.12.2008 Haren Mahata died at Bokaro. Up to his dead at Bokaro she stayed there. Sector Force police after the death of Haren came to hospital and she identified the dead body to the police of Bokaro. At that time sector force police reduced to his version to writing wherein she put his signature after it was read over to him and his signature on that paper was already been marked Exbt. 2. She narrated the name of the assailant who assaulted his mother and Haren to sector force police. Not a fact that she stated to the sector force police that some of his villagers assaulted Haren Mahato at about 5.45 a.m. on that day. After 1/2 minutes of the departure of her mother she rushed to Chowdhury bandh. When she reached to Chowdhury bandh she saw the incident of assault was going on. Her father and uncle reached Chowdhury bandh after 5 minutes of her arrival. Immediately on her reaching thereafter she was assaulted by the accused parsons. She could not say whether villagers assembled there or not. Even after him sustaining assault he stayed at Chowdhury bandh. Thereafter she had been to Santaldih Thermal Power hospital. Her father and uncle reached Chowdhury bandh after 5 minutes of her arrival. Immediately on her reaching thereafter she was assaulted by the accused parsons. She could not say whether villagers assembled there or not. Even after him sustaining assault he stayed at Chowdhury bandh. Thereafter she had been to Santaldih Thermal Power hospital. Firstly she went to Thermal power hospital & followed by his parents and her uncle. She was on the day of the incident she was examined by the police of Santaldih P.S. On that day she went to Santaldih P.S. from Thermal Power hospital. She stated to the I.O. that after her departure to his house her father and her uncle left the house to Chowdhury bandh. She did not state to the I.O. that her uncle was there at the Chowdhury bandh before on that day. She stated to the I.O. that she was unable to say the name of the actual assailants who assaulted him among the four. She did not state to the I.O. that Bijoy assaulted him with a lathi and accused Thandabala caught hold him on that day. v. PW-5 deposed that Haren Mahata was her husband. The accused persons committed murder of her husband about nine years back in the month of Aghrehayan. She was at the Pukur Ghat. At that time Purabala and accused Thandabala went to wash themselves. An altercation arose in between Thandebala and Purabala and thereafter the accused persons appeared there. At that time her husband went to Pukur Ghat to wash his face. An alteration was going between Purabala and Thandabala. The accused persons assaulted Purabala. Incidentally her husband came there. Thereafter the accused persons assaulted her husband. The accused persons also assaulted Fatik Mahata and his son Bikash. Her husband was brought to Bokaro hospital where he succumbed to his injuries. On 29.11.2002 an altercation broke out in between Thandabala and Purubala. She woke up from her bed on the material day at about 5 a.m., and thereafter she came out of her house to wash her hand and face at the Chowdhury bandh ghat. There were separate ghats in that Chowdhury band for male and female persons. At about 6 a.m., on that material day the altercation in between Purebala and Thandabala was started in the pukur ghat. At that time her husband reached in that ghat. There were separate ghats in that Chowdhury band for male and female persons. At about 6 a.m., on that material day the altercation in between Purebala and Thandabala was started in the pukur ghat. At that time her husband reached in that ghat. Haren was washing himself in that ghat along with male persons. The altercation continued for about half an hour, she herself witnessed the incident of assault. She was interrogated by the I.0. She could not say the date when she was examined by the I.0., after the incident. She stated to the I.O. that these accused persons assaulted Purabela. She could not recollect whether she stated to the I.O that her husband reached the P.O hearing the shouting of Purabala. She stated to the I.O that the accused persons assaulted her husband on that day, namely, Satish and Thandabala assaulted her husband. vi. PW-6 stated that he was a resident of village Ashurbanch. That written complaint was drafted as per the instruction of P.W-2. It was read over and explained to him. Thereafter he signed at the foot of the F.I.R That was his signature with address on the F.I.R. The entire F.I.R. was marked as Exbt. 1/1. He knew the defacto complainant and the accused persons as his co-villagers. During cross-examination, PW-6 stated that before 8 a.m. he had been to Santaldih P.S. he got PW. 2 in the thana premises and Kailash Mahata as well. He came to know later on that on the basis of self same incident that one Kailash Mahata lodged another case against Fatik Nahata, Bikash Mahate and others. He could not say whether police arrested Patik Mahata and Bikash Mahata on that day. On that day he did not execute any personal bond in favour of Fatik Mahata and Bikash Nahata. vii. PW-7 stated in his examination-in-chief that he was attached to Raghunathpur S.D. Hospital as Medical Officer, Radiologist. On 03.12.2002 he gave an opinion with regard to X-ray plate of Fatik Chandra Mahata. Fracture of mid short of left ulna. No significant display was present. That was the report prepared by him which bore his signature marked as Exhibit-3. During cross-examination, PW-7 stated that type of injury might be caused due to sudden fall on the ground. 6. On 03.12.2002 he gave an opinion with regard to X-ray plate of Fatik Chandra Mahata. Fracture of mid short of left ulna. No significant display was present. That was the report prepared by him which bore his signature marked as Exhibit-3. During cross-examination, PW-7 stated that type of injury might be caused due to sudden fall on the ground. 6. PW-2 deposed to have been assaulted on the frontal region of his head along with a fracture on his left hand contrary to the evidence of the Doctor PW-7 who stated the fracture to be insignificant. The hospitalisation of other injured witness viz. PW-4 was not proved. PW-3 and other related witnesses stated the victim Haren Mahata to have been sustained severe bleeding injuries. Prosecution failed to prove the injuries so sustained by the victim resulting in his demise through Post Mortem report which was not produced. The hospitalisation of the victim as well as the Doctor to have attended the victim were the serious lapses on the part of the prosecution which were required to be proved and cited respectively. Evidently there was a dispute amongst the family members on the basis of an ensuing enmity with institution of criminal cases against each other. Prosecution failed to cite any independent witness to the incident of assault. Though the evidence of injured witness is credible enough to induct an offender, however such evidence should be without malicious intent, revengetic approach, false implication, element of suspicion, self-interest, grudge and illegal gratification. 7. The evidence of the related witnesses portrayed, omissions in consistencies and contradictious in terms of the presence of the said witnesses at the place and time of occurrence, individual role of the appellants to have overtly caused the injuries and proof of the same through proper medical documents. 8. Under the facts and circumstances, the prosecution has failed to establish its case beyond reasonable doubt and as such the criminal appeal is allowed. 9. Accordingly, the criminal appeal being CRA 341 of 2013 stands disposed of. 10. There is no order as to costs. 11. Lower court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 12. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.