Calcutta High Court (Appellete Side)
Shibu Shaw @ Shibu Shah vs The State Of West Bengal And ... on 18 August, 2022
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Tirthankar Ghosh
C.R.A. 429 of 2018
Shibu Shaw @ Shibu Shah
versus
The State of West Bengal and another
For the Appellant : Mr. Sabir Ahmed,
Mr. Mujibar Ali Naskar.
For the State : Mr. Saswata Gopal Mukherjee, Ld.P.P,,
Mr. Sandip Chakraborty,
Mr. Saryati Datta.
Heard On : 18.08.2022.
Judgement On : 18.08.2022.
Tirthankar Ghosh, J. :
The present appeal has been preferred challenging the
judgment and order of conviction dated June, 18, 2018 passed by the
learned Additional Sessions Judge, First Court, Sealdah, 24 Parganas
(South) in connection with Sessions Trial No.1(11) of 2016 wherein the
learned trial court was pleased to hold the accused/appellant guilty of
2
offence under Section 304 of the Indian Penal Code and sentenced him
to suffer rigorous imprisonment for seven years and to pay fine of
Rs.20,000/-, in default to undergo imprisonment for three months more.
The genesis of the case relates to Entally Police Case No.235
dated 10.06.2014 under Section 304 of the Indian Penal Code which was
registered for investigation pursuant to statement of one Tapasi Majhi
(hereinafter referred to as complainant) being recorded by one Prasanta
Bhowmick, Sub-Inspector of Police, Entally Police Station. The
complainant stated that she is a house wife residing at room no.239 (1st
floor) of "Jyoti Basu Sramik Abasan" at 6/1, Palmar Bazar Road,
Kolkata-700 015 and her husband was an employee of Water Supply
Department, Kolkata Municipal Corporation. They had a daughter aged
about six years.
It has been contended that on 09.06.2014 in the evening
hours the complainant's paternal grand father, namely, Kanai Chandra
Kar, a resident of 1 Refugee Lane, Kolkata 700 012, P.S. Muchipara,
came to her house at Palmar Bazar Road. At about 10.00 a.m. on
10.06.2014
when she was gossiping with her grand father at her home,
Shibu Shaw/appellant came there searching for her brother Avijit Kar at
her residence. The complainant contends that there was a long standing
dispute between the appellant and Avijit Kar as there was an illicit
relationship between the wife of Shibu Shaw and her brother Avijit Kar.
The complainant informed the accused Shibu Shaw that Avijit Kar was
not present at her residence. At this the appellant became furious and
uttered filthy languages and when her paternal grand father Kanai
Chandra Kar raised objection and asked Shibu Shaw/appellant to leave
as her husband was not present, then suddenly the appellant punched
her grand father on his chest with his fist and pushed him on the floor.
The complainant thereafter rushed towards her grand father when the
appellant fled away. Her grand father thereafter complained chest pain
and asked the complainant to take to his residence at 1 Regfugee Lane.
As such, they boarded an auto rickshaw and got down in front of
Sealdah Court where she met her aunty Renuka Das and both of them
took Kanai Chandra Kar to his residence at 1 Refugee Lane. Later,
health condition of Kanai Chandra Kar deteriorated and police was
informed when on the point of jurisdiction they were referred to Entally
Police Station. It has been stated that Kanai Chandra Kar/deceased was
taken to NRS Medical College & Hospital where the doctor declared him
as "brought dead". The complainant alleged that Kanai Chandra Kar
died due to punch inflicted on his chest by Shibu Shaw/appellant.
The police authorities after registration of the case
conducted investigation and on completion of investigation submitted
charge-sheet under Section 304 of the Indian Penal Code. The case being
sessions triable, the learned ACJM, Sealdah committed the case to
sessions court.
On consideration of the statement and documents relied
upon by the prosecution and after affording the accused/appellant an
opportunity of hearing, charge was framed under Section 304 of the
Indian Penal Code. The prosecution in order prove its case relied upon
11 witnesses and number of documents which included statement of
Tapasi Majhi (which was treated to be FIR), formal FIR, medical
examination report, medical death report, inquest report, postmortem
report and T.I.Parade report.
On an appreciation of the evidence, it is reflected that P.W.
3, Tapasi Majhi, who happened to be the complainant and at whose
residence the incident took place consistently stated in the same manner
as that was stated by her before the police officer in her statement which
was treated to be the First Information Report of the case. The same
narration of facts are also revealed from the medical report which is
corroborated by P.W.4, Dr. Sagarika Bhattacharjee.
I have considered to this extent that so far as the issue of
the accused/appellant being present at the residence of P.W.3, Tapasi
Majhi at the time of incident the same cannot be ruled out in view of the
consistent documentary and oral version.
Mr. Sabir Ahmed, learned advocate appearing for the
appellant submits that the veracity of the witnesses relied upon by the
prosecution are questionable and their evidence cannot be relied upon to
arrive at a conclusion of guilt so far as the present case is concerned.
Mr. Ahmed has taken the court through the evidence of P.W.3 wherein,
according to the learned advocate, there has been a deviation in respect
of the fact of taking the deceased to the hospital directly or firstly to the
house of the deceased and thereafter from there to N.R.S. Hospital. The
appellant contends that purposely P.W.3 has manipulated the facts to
her advantage and raised serious doubt regarding the acceptability of
her version before the court. Additionally, learned advocate submits that
there are no evidence from which it can be said that the appellant was
present at the place of occurrence, as such, the scanty materials against
the appellant do not make out a case for conviction. Thus, the judgment
and order of conviction passed by the learned trial court be interfered
with and the same should be set aside.
Mr. Sandip Chakraborty, learned advocate appearing for the
State resists such contention of the appellant and submits that there are
consistent version so far as the presence of the appellant is concerned
and his complicity in the offence is substantiated by both oral and
documentary evidence. It has been submitted on behalf of the State that
the FIR, the evidence of P.W.4, the contents of exhibit 2 and the
deposition of P.W.3 in court if compared would lead any man of ordinary
prudence to come to a conclusion that it was only the appellant who
struck the fatal blow at the chest leading to the deceased's untimely
death.
I have considered the evidence as a whole and I find that the
prosecution has by way of cogent oral and documentary evidence
succeeded in proving the offence under Section 304 of the Indian Penal
Code. Accordingly, the order of conviction so passed by the learned trial
court on 18.06.2018 need not be interfered with.
However, the appellant during the trial and pendency of the
appeal has already suffered imprisonment for 1 year 8 months and 18
days. Having regard to the period of detention already suffered by the
appellant, I am of the opinion that, for the act complained of, the
sentence must be commensurate. Thus, the sentence is modified to the
extent which has already been undergone and suffered by the appellant
as stated above.
Accordingly, CRA 429 of 2018 is partly allowed.
Pending application, if any, is consequently disposed of.
Department is directed to send back the lower court records
to the learned court below immediately.
Urgent photostat certified copy of this judgment, if applied
for, be given to the parties upon compliance of all requisite formalities.
(Tirthankar Ghosh, J.)
bpg.
