Pabitra @ Parvat @ Pattar Karmakar ... vs State Of West Bengal
2021 Latest Caselaw 3712 Cal

Form J(2)         IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                              Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri


                        C.R.A. 476 of 2015

                 Pabitra @ Parvat @ Pattar Karmakar @ Das
                                  Vs.
                          State of West Bengal


For the Appellant:      Mr. Navanil De
                        Mr. Rajeshwar Chakraborty



For the State:          Mr. Rana Mukherjee
                        Ms. Sujata Das
                        Ms. Debjani Sahoo



Heard on                : 13.07.2021



Judgment On             : 13.07.2021



Bibek Chaudhuri, J.

The accused of Sessions Trial No.42(11) of 2013, (Sessions

Case No.293 of 2013) is the appellant before this Court assailing the

judgment and order of conviction dated 24th June, 2015 and order of

sentence dated 25th June, 2015 passed by the learned Additional

Sessions Judge, Fast Track, First Court at Malda for an offence

punishable under Section 325/326/307 of the Indian Penal Code. The

learned trial Judge sentenced the appellant to suffer rigorous

imprisonment for seven years and to pay fine of Rs.10,000/-, in

default, for further rigorous imprisonment for one year.

Malda P.S. Case No.93 of 2013 was registered on 25 th March,

2013 on the basis of a written complaint submitted by one Prasanta

Das, Inspector-in-charge, Malda P.S. stating, inter alia that the

appellant used to give indecent proposal to his mother. The mother

of the de facto complainant disclosed such incidents to him. On 24 th

March, 2016 at about 7 P.M. the de facto complainant and his family

members were going to a village fair. At that time, the accused

entered into the house of the de facto complainant and tried to

commit rape on her mother. When she resisted him, the accused

assaulted her with hammer and 'hasua' on her head. As a result, the

mother of the de facto complainant sustained grievous injury on her

head, cheek, teeth and finger of the left hand. After receiving such

injury she fell down on the ground. Local people rushed to the place

of occurrence and took her mother to Malda Medical College and

Hospital where she was admitted as an indoor patient. Police took up

the case for investigation and on conclusion of the investigation,

submitted charge sheet against the accused under Sections

325/326/327 of the Indian Penal Code.

As an offence under Section 307 of the Indian Penal Code is

exclusively triable by the learned Court of Sessions, the case was

committed to the learned Sessions Judge at Malda. Learned Sessions

Judge in turn transferred the case for trial and disposal to the First

Fast Track Court, Malda.

Learned trial Judge framed charge against the accused under

Sections 448/376/511/325/326/307 of the Indian Penal Code. As the

accused pleaded not guilty, trial of the case commenced. During trial

the prosecution examined as many as ten witnesses to prove the

charge against the accused.

The accused was examined under Section 313 of the Code of

Criminal Procedure but no evidence was laid on behalf of the defence.

During trial the de facto complainant was testified as P.W.3.

P.W. 4 is the mother of the de facto complainant and victim of this

case. P.W. 1 Ranjana Karmakar and P.W.2 Niranjan Das did not

support the prosecution case. P.W.1 was declared hostile by the

prosecution. P.W.5 Kartik Das is an witness to the seizure. P.W.6

Naresh Sarkar is the scribe of the F.I.R. and P.W.7 S.I. Manaranjan

Sarkar is the Investigating Officer of this case. P.W.8 Dr. Asit Baran

Ghosh, P.W.9 Dr. Arko Prabhu Roy and P.W.10 Dr. Md. Abdur Rashid

are the medical officers who at different points of time medically

treated the victim. In her evidence Smt. Jharna Das (P.W.4) stated

that the accused was the brother-in-law of the victim. On the date of

occurrence at about 7 P.M. P.W.4 was binding 'bidi' at her house. At

that point of time, she was alone in the house and her son and son's

wife went to see a village fair. At that time the accused came to the

house of P.W.4 and asked her as to why she did not go to see the fair.

P.W.4 replied that she was not physically fit. Then the accused took

her forcibly to his house. The victim tried to shout but he closed her

mouth with cloth. The accused was armed with knife and hammer.

He assaulted her on her head and face with the help of knife. The

victim sustained bleeding injury due to such assault and fell down on

the ground. Local people admitted her to Malda District Hospital.

Then she was referred to Malda Medical College and Hospital and

finally to N.R.S. Medical College and Hospital at Kolkata. She was

under medical treatment for one and half months. She sustained

fracture due to assault by the accused. Her teeth were damaged and

she also sustained cut injury on her finger. It is found from the

evidence of P.W.3 Prasant Das that on the date of occurrence he went

to see 'Sasan Mela' at Behala. While he was at the fair ground, he

received phone call from Kajal. Kajal informed him that his mother

was severely assaulted. He immediately returned to his house. In the

meantime his mother was already shifted to a hospital. He went to

the hospital and came to know that her mother was transferred to

Malda Medical College and Hospital. He went there and saw his

mother in injured condition. In the hospital Ranjana Das Karmakar

(P.W.1) informed the de facto complainant that his uncle Prabhat

Karmakar assaulted his mother. As he was busy in the medical

treatment of his mother, there was a delay of two days in lodging the

complaint.

It is pertinent to mention that Ranjana Das Karmakar (P.W.1)

stated in her evidence that on the date and time of occurrence she

heard a hue and cry of her sister and rushed to her house and saw

her sister Jharna lying on the veranda in unconscious state.

Thereafter, she was shifted to the hospital. P.W.1 did not say the

name of the accused as a perpetrator of the offence.

P.W.6 Naresh Sarkar was the scribe of the F.I.R. who stated on

oath that he wrote the same as per dictation of P.W.3 Prasant Das.

The said written complaint was marked as Exhibit-1. P.W.8 Dr. Asit

Baran Ghosh was an emergency Medical Officer attached to N.R.S.

Medical College and Hospital. On 28th March, 2013 the victim Jharna

Das was admitted in Main Surgery Female Ward under him.

According to P.W.8 her physical condition was very poor and critical

and she was gasping at the time of admission. She had head injury

and one lacerated injury over left maxillary area of face. P.W.9 Dr.

Arko Prabhu Roy was the Assistant Professor of Surgery at Malda

Medical College on 24th March, 2013. He medically examined the

victim on the date of occurrence and found cut injury over jaw,

eyebrow, scalp, dental injury and left little finger. Signature of P.W.9

on the bed head ticket was marked as Exhibit-6 in the instant case.

P.W.10 Dr. Md. Abdur Rashid was also posted at Malda Medical

College and Hospital. He brought the original bed head ticket and

treatment sheets of the victim. Attested copies of which were marked

as Exhibits-5 and 6.

This is all about the evidence on behalf of the prosecution.

Mr. Navanil De, learned advocate for the petitioner submits at

the outset that the instant appeal was filed in the year 2015. In

connection with this appeal, an application being CRAN 2853 of 2016

was filed on behalf of the appellant under Section 389(1) of the Code

of Criminal Procedure praying for suspension of sentence and bail. A

Co-ordinate Bench of this Court rejected the prayer for bail of the

accused. Thus, the appellant is in custody since 25th June, 2015 when

the order of sentence was passed by the learned trial Judge till this

date. He was sentenced to rigorous imprisonment for seven years. In

the meantime, the appellant suffered sentence of more than six

years. Thus, he submits that considering the period of detention of

the accused towards sentence, the appellant deserves some leniency

in the instant appeal.

On merit it is submitted by the Learned Advocate for the

appellant that the alleged incident took place on 24 th March, 2013 at

about 7 p.m. in the house of the de facto complainant. Undisputedly

de facto complainant was not present at the time of occurrence and

he was not an eye-witness in the incident. Except the victim no other

person supported the prosecution case. The de facto complainant

stated in his evidence that his maternal aunt, Ranjana Das Karmakar

informed him at Malda Medical College & Hospital that accused Pravat

Karmakar @ Das assaulted his mother with the help of hammer and

knife. But the said Ranjana Das Karmakar was declared hostile by the

prosecution while she was examined as P.W.1. It is also pointed out

by the learned Advocate for the appellant that P.W.3 stated in his

evidence that on the date and time of occurrence when he went to

see a village fair he received a phone call from one Kajal who first

informed him that his mother was assaulted. The said Kajal was not

cited as a witness in the instant case. The learned Trial Judge

recorded conviction of the accused on the basis of solitary evidence of

the victim coupled with the medical documents.

The learned Counsel for the appellant draws my attention to

exhibit 6 which is an attested copy of bed head ticket of the victim

when she was admitted to Malda District Hospital on 24 th March, 2013

after receiving the injury. In the bed head ticket history of the

incident was recorded, "physical assault at around 7 p.m. today at

residence by hasua-stated by patient party (son)". The son of the

injured lady did not inform the name of the assailant to the medical

officer who first treated the victim after the incident. The next injury

report was prepared by the Emergency Medical Officer at NRS Medical

College and Hospital. In Column No.10 of the injury report, it was

written that the victim was assaulted by her brother-in-law with the

help of one iron rod and another weapon. The history of injury was

recorded as per the statement of the patient.

From the evidence of the victim (P.W.4), it is ascertained that

there was an ongoing dispute between the victim and her brother-in-

law over the landed property over which the victim erected her house.

It is not uncommon in village area that a person is falsely implicated

in a criminal case due to previous grudge or enmity between the

parties when the relation between the victim and the accused is

inimical, it is the duty of the Court to examine the evidence of the

victim with a grain of salt. In the instant case, the neighbouring

people of the victim did not come forward to depose in support of the

victim. Specific case of the defence is that the victim had illicit

relation with one Gopal Thakur of Baluchar and on the date and time

of occurrence she was found with Gopal Thakur in her house alone

and the villagers assaulted her. It is also pointed out by the learned

Advocate for the appellant that when the injured victim regained her

sense in hospital, she saw Ranjana, Niranjan, Chandana, Purnnima,

Banamali and Anil Mirdha present by her side. Ranjana and Niranjan

did not support the prosecution case while other above-named

persons were not examined by the prosecution.

In view of the above lacuna, according to the learned Advocate

for the appellant that the appellant is entitled to get benefit of doubt.

Mr. Rana Mukherjee, learned P.P-in-Charge, on the other hand

submits that the evidence of P.W.4 who was injured being assaulted

by the appellant is sufficient to hold the appellant guilty for

committing offence under Sections 307 and 326 of the Indian Penal

Code. Specific evidence of P.W.4 is that the appellant assaulted on

her head with the help of hammer causing fracture of scalp of her

head and incised wound on her face, cheek, teeth and left little finger.

The injury on the head was sufficient and serious in nature to cause

death of a person. The nature of injury and the manner in which it

was caused, weapon used etc. are the circumstances which led the

trial Court to hold that the accused/appellant had intention to commit

murder of P.W.4. The ocular evidence of P.W.4 was corroborated by

medical documents and the evidence of medical officers being P.W.8,

P.W.9 and P.W.10. It is submitted by Mr. Mukherjee that though the

prosecution failed to produce any witness of the locality to corroborate

the incident or that the sister of the injured (P.W.4) was declared

hostile, prosecution case cannot suffer. Evidence of an injured person

stands on a higher pedestal. Her evidence cannot normally be

questioned. The court may require corroboration of the evidence of

the injured witness when there is contradiction between her previous

statement and the evidence on oath. In the instant case, the cross-

examination of P.W.4 reveals that her evidence was free from any

contradiction. Under such conspectus it is submitted by the learned

advocate for the State respondent that the learned trial Judge did not

commit any error in holding the appellant guilty for committing

offence under Section 307 of the Indian Penal Code.

I have already recorded that during trial charge against the

appellant was framed under Sections 448/376/511/325/326/307 of

the Indian Penal Code. The learned trial Judge held the accused

guilty for committing offence under Sections 325/326/307 of the

Indian Penal Code. Accordingly, he was convicted under Section

235(1) of the Code. Finally, he was sentenced to suffer rigorous

imprisonment for committing offence under Section 307 of the Indian

Penal Code. No separate order of sentence was passed by the

learned trial Judge for the offence under Section 325/326 of the

Indian Penal Code though he was convicted under the said penal

provisions.

Section 307 of the Indian Penal Code requires that the Act must

be done with such intention or knowledge or done under such

circumstances that if death be caused by the Act the offence of

murder will emerge. To constitute an offence under Section 307 of the

Indian Penal Code, it has to be seen whether the Act, irrespective of

result, was done with the intention or knowledge and under

circumstances as mentioned therein. The intention or knowledge of

the accused must be such as is necessary to constitute murder

without this ingredient being established there can be no offence

under Section 307 of the Indian Penal Code. It is, however, true that

such intention has to be gathered from all surrounding circumstances.

Therefore, it is to look into in the instant appeal if the accused

had intention to commit murder of P.W.4 or that but for her recovery

from injury she did not succumb to death as a result of such injury.

Focus of the learned trial Judge was solely on the nature of injury

sustained by the victim. There is absolutely no discussion as to

whether the evidence on record satisfied the ingredients of the

offence under Section 307 of the Indian Penal Code in so far as it

relates to the mens rea coupled with actual aches rea. On the

contrary, on careful perusal of the evidence on record it is found that

the victim herself stated on oath that the appellant came to her house

on the date and time of occurrence to commit rape upon her.

Therefore, the prime intention of the appellant was to commit sexual

assault to the victim. When the victim resisted him, he assaulted her

with the help of a hammer and a knife. Therefore, it was not the

intention of the appellant to commit murder of the victim. He also did

not cause injury of the victim with the knowledge and under such

circumstances that, if he by that act caused death, he would be guilty

of murder. The accused tried to satisfy his unnatural lust and when

resisted caused grievous hurt to the victim.

This court independently examined the evidence of the victim

and the doctors. There is no dispute that the victim sustained

grievous injury on her head and face. The injuries satisfy the

ingredients of Section 320 of the I.P.C.

In view of such circumstances, this Court is of the opinion that

the appellant committed offence under Section 326 of the Indian

Penal Code and he is liable to be sentenced for committing offence

under Section 326 of the Indian Penal Code.

For the reasons stated above, the instant appeal is allowed in

part. The judgment and order of conviction and sentence passed by

the learned trial Judge in the case under Section 307 of the Indian

Penal Code is set aside. However, the conviction under Section 326 of

the I.P.C is affirmed. The appellant is sentenced to rigorous

imprisonment of five years for committing offence under Section 326

of the Indian Penal Code and also to pay fine of Rs.5,000/-, in default,

further imprisonment for three months for committing offence under

Section 326 of the Indian Penal Code.

The period of custodial detention during the pendency of the

appeal shall be set off under Section 428 of the Code of Criminal

Procedure.

Copy of the judgment be given to the learned advocate for the

appellant free of cost at once.

(Bibek Chaudhuri, J.)