Sandip Bhowmick vs State Of West Bengal
2021 Latest Caselaw 5810 Cal

Item No. 45




                      IN THE HIGH COURT AT CALCUTTA
                      CRIMINAL APPELLATE JURISDICTION
                             APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Bivas Pattanayak


                              C.R.A.113 of 2021

                             Sandip Bhowmick
                                     -Vs-
                             State of West Bengal



For the Appellant        :    Ms. Sreyashee Biswas


For the State            :    Ms. Anasuya Sinha
                              Mr. Pinak Kumar Mitra

Heard on                 :    24th November, 2021

Judgement on             :    24th November, 2021


Joymalya Bagchi, J. :-

         The appeal is directed against the judgment and order dated

30.07.2019

and 31.07.2019 passed by the learned Additional District &

Sessions Judge, Chandernagore, Hooghly in Sessions Trial No. 52 of

2016 arising out of Sessions Case No. 103 of 2016 convicting the

appellant for commission of offence punishable under Section 302 of

the Indian Penal Code for life and pay a fine of Rs.10,000/- , in default

to suffer further rigorous imprisonment for a period of three months for

the offence under Section 302 of the Indian Penal Code.

Prosecution case, as alleged, against the appellant is to the effect

that the appellant was married to the deceased Arpita Bhowmick

pursuant to the negotiations according to the Hindu Rites and Customs

in the month of January, 2006. The couple were blessed with two

children - Bristi who was examined as P.W. 5 and a son, named Bittu.

The appellant used to work in a jewellery shop in Surat and would visit

his residence at Tarakeswar off and on where the family permanently

resided. It is alleged during such visits the appellant misbehaved with

his wife. Twenty five days prior to the incident the appellant had

returned from Surat. On the fateful night between 11th/12th April, 2016

the appellant returned home late and called upon his wife to open the

door. As Arpita was late in opening the door, he kicked her abdomen.

Consequently, Arpita suffered pain and felt unwell. She was treated by a

local quack (PW 9). On the next day as her condition deteriorated she

was shifted to Tarakeswar Rural Hospital where she was treated by

doctor Aninda Parbat (P.W. 13). Arpita finally breathed her last at

9.15p.m. on 12.04.2016 in the said hospital.

On the written complaint of Panchanan Bera (P.W. 1), father of

the victim lady, Tarakeswar P.S. Case No. 116 of 2016 dated 13.04.2016

under Sections 498A/302/120B of the Indian Penal Code was registered

against the appellant and his father Sukumar Bhowmick.

In conclusion of investigation, charge sheet was filed in the

instant case and case was committed to the Court of the Additional

District & Sessions Judge, Chandernagore, Hooghly for trial and

disposal. Charges were framed against the appellant and Sukumar

Bhowmick under Sections 498A/302/120B of the Indian Penal Code. In

the course of trial, prosecution examined 14 witnesses and exhibited a

number of documents. Defence of the accused persons was one of

innocence and false implication. In conclusion of trial, trial judge by

judgment and order dated 30.07.2019 and 31.07.2019 convicted and

sentenced the appellant, as aforesaid. By the selfsame judgment and

order, however, co-accused Sukumar Bhowmick was acquitted of the

charges levelled against him.

Ms. Shreyashee Biswas, learned advocate appearing for the

appellant argues the cause of death of Arpita has not been proved

beyond reasonable doubt. Post-mortem doctor (PW11) reserved opinion

on the cause of death awaiting viscera report and report of heart

analysis. It is further argued that the prosecution had failed to prove that

the alleged assault on the victim had resulted in her death. Accordingly,

she prays for acquittal.

Ms. Anasuya Sinha, learned advocate appearing for the State in

support of the conviction contends that the daughter of the couple (PW5)

has unequivocally stated that the appellant had repeatedly kicked the

victim in the abdomen. Evidence of the Medical officer who treated the

deceased at Tarakeswar Rural Hospital shows that her abdomen was

tensed and diffused which was due to internal organ injury. Soon

thereafter, she suffered cardiac arrest and died. She also draws our

attention to the opinion of the post-mortem doctor (Exhibit 8) who upon

considering the viscera report opined the victim. Thus, the homicidal

death of the victim has been clearly established.

In view of the aforesaid submissions made at the Bar, at the

outset, it is necessary to examine whether the deceased suffered

homicidal death or not.

PW5, Brishti Bhowmick is the daughter of the couple. She is a

minor and was a student of Class IV when she was examined.

Accordingly, the trial court examined her competence and upon being so

satisfied recorded her deposition. In her deposition, Brishti stated that

her father is engaged in jewellery work at Surat. 20-25 days prior to the

incident, her father had returned home. On the fateful night around

1:00/2:00 A.M., her father called out to open the door. She and her

mother went to open the door. Her mother was a bit late in opening the

door. Immediately on opening the door, her father kicked her mother in

the abdomen. She was pushed aside. Her second aunt and grandmother

also came to the spot and tried to restrain her father. Her aunt and

grandmother took her mother to the room. Her mother suffered pain in

the abdomen. They applied coconut oil with water. In the morning her

father brought medicine from the local doctor. In the evening her mother

was taken to the hospital where she died. She made statement before the

Magistrate.

In cross-examination, she admitted that her father had taken

her and her mother to Surat on earlier occasions. Her father loves her

and her brother. He also loves their mother a little. After the death of her

mother, her father visited her at her maternal uncles' house once or

twice. Her father took her brother to her maternal uncles' house for bhai

phonta. She stated that at times her mother had colic pain and consulted

doctor.

PW5, Brishti is the only eyewitness to the incident. PW1

(Panchanan Bera) is the father of Arpita (the victim), PW3 (Debasish

Bera) is her brother and PW6 (Madhumita Sasmal) is her sister. None of

these witnesses were present at the spot and do not throw any light with

regard to the incident immediately prior to her hospitalisation. However,

the evidence of Brishti finds corroboration from the deposition of PW9

(Pravat Samanta) who stated that he is a local doctor and the appellant

had informed him that his wife was suffering from diarrhoea. He visited

the patient and found that she was having breathing trouble and was too

ill to speak. He advised the patient to be shifted to hospital.

PW13, Aninda Parbat examined the victim at Tarakeswar Rural

Hospital and his evidence with regard to the cause of death is very vital.

He stated the patient had been brought to the hospital at 8:50 P.M. on

12th April, 2016 with a history of fall from the staircase and injury in her

abdomen as stated by her husband and mother-in-law. On examination,

he found the general condition of the patient very poor. She had pallor.

He also found sub-conjunctival haemorrhage in both the eyes. He

noticed scratch mark on the left side of the neck. Her abdomen was

tensed and diffusely tendered. She was suffering from shortness of

breath. He advised her to be referred to a better hospital. On further

enquiry her husband admitted that he kicked her on the abdomen on the

previous day. Patient expired at 09:15 P.M. He proved the bed-head

ticket (Exhibit-9).

In cross-examination, he stated tense distension may occur

due to internal organ injury or infection.

The post-mortem doctor was examined as PW11. He found

abrasion 1 x ½ centimeter over left cheek prominence, haematoma over

frontal prominence with blackish eye. He reserved his final opinion

regarding cause of death pending receipt of chemical examination of

viscera and heart. He proved the post-mortem report (Exhibit-4).

It may be pertinent to note that viscera report was placed on

record in the course of trial and admitted into evidence. Viscera report

did not record any poison.

Upon receipt of viscera report, post-mortem doctor, P.W.11 had

given his opinion with regard to cause of death as follows:

"...after obtaining the viscera report it seems that the cause of death was due to shock from cardiorespiratory failure and the injuries as noted in post mortem report.

Manner of causation may be determined from circumstantial evidence which may be homicidal in nature. "

Such information was communicated to the investigating officer

P.W.12 who proved it as Exhibit 8. From the evidence of Bristi, P.W.5

and the medical evidence on record particularly that of P.W.13, Post-

Mortem report (Exhibit 4) and the final opinion of the post mortem doctor

(Exhibit 8), I find no reason to doubt that the death was homicidal.

The next question, which I require to answer is who was

responsible for her death.

As discussed earlier, evidence of the minor daughter P.W.5, clearly

establishes the fact that the appellant had kicked on the abdomen of the

deceased prior to her death.

It appears that the defence has suggested that she suffered injury

due to the fall or distended condition of the stomach was due to

infection.

Learned counsel for the appellant drew attention of this court to

the cross-examination of P. W. 5 wherein she stated her mother was

suffering from colic pain and consulted doctors to probabilise that the

distended stomach was due to injury. I am unable to accept such

contention. No evidence is forthcoming that on the fateful night, the

victim was suffering from colic pain. On the other hand on an intense

interrogation, the appellant had himself admitted before P.W.13 that he

had kicked the victim in the abdomen.

Hence, I have no doubt in my mind that the victim had suffered

injuries in the abdomen upon being kicked by the appellant and had

ultimately expired.

However, from the factual matrix of the case, I note that there was

no bad relation between the appellant and the deceased. Although there

are stray sentences in the deposition of P.W. 1 and P.W.6 that the

appellant used to ill-treat the victim when he returned from Surat, no

contemporaneous complaint was lodged. On the other hand, cross-

examination of P.W.5, the daughter of the couple shows that the

appellant took care of their needs and had on earlier occasion taken her

and her mother to Surat. PW 6 also deposed she did not know why the

appellant had assaulted the victim.

It is also relevant to note that the charge under Section 498A of the

Indian Penal Code has failed.

Thus the prosecution has singularly failed to prove the motive on

the part of the appellant to murder his wife. Analysis of the evidence of

P.W.5 daughter shows that the incident occurred at mid-night over an

altercation relating to delay in opening the door of the house. The

appellant had called upon the deceased to open the door at mid-night.

There was some delay in opening the door this enraged the appellant and

in a fit of passion he kicked the deceased.

The aforesaid facts and circumstances clearly show that the act of

the appellant was without pre-meditation in the course of an altercation

and wholly a fit of passion.

Hence, I am of the opinion that the conviction of the appellant

requires to be altered from one under 302 to 304 part 1 of the Indian

Penal Code.

In view of the aforesaid alteration, I reduce the sentence imposed

on the appellant and direct that the appellant shall suffer rigorous

imprisonment for a period of ten years and pay a fine of Rs.10,000/- in

default, to suffer rigorous imprisonment for a period of three months

more for the offence punishable under Section 304 Part 1 of the Indian

Penal Code.

The appeal is allowed to the extent indicated above.

Period of detention, if any, undergone by the appellant during

investigation, enquiry and trial shall be set off against the substantive

sentence imposed upon him in terms of Section 428 of the Code of

Criminal Procedure.

Lower court records along with a copy of this judgment be sent

down at once to the learned trial court for necessary action.

Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

I agree.

(Bivas Pattanayak, J.)                              (Joymalya Bagchi, J.)




sdas/akd/basu/PA