Sahaban Sk vs The State Of West Bengal
2022 Latest Caselaw 5865 Cal

                   IN THE HIGH COURT AT CALCUTTA
                CRIMINAL MISCELLANEIOUS JURISDICTION
                           APPELLATE SIDE


Present:
The Hon'ble Justice Debangsu Basak
          AND
The Hon'ble Justice Bibhas Ranjan De

                           CRA 11 of 2021
                                 with
                           CRAN 1 of 2021
                             Sahaban Sk.
                                 -vs-
                       The State of West Bengal

For the appellant            :     Mr. Tapan Dutta Gupta, Advocate
                                   Mr. P. Anam, Advocate


For the State                :     Mr. N. Ahmed, Ld. APP
                                   Mr. Iqubal Kabir, Advocate
                                   Ms. Trina Mitra, Advocate

Hearing concluded on         :     August 25, 2022
Judgment on                  :     August 25, 2022




Debangsu Basak, J.:-

    1.

The appeal is directed against the judgment of conviction dated

October 15, 2020 and the order of sentence dated October 16,

2020 passed by the learned Additional District & Sessions Judge,

4th Court Berhampore, in Sessions Trial Case no. 02 (7) of 2005

arising out of Domkal Police Station case no. 71/95 dated

August 14, 1995 under Section 302 of the Indian Penal Code,

1860.

2. Briefly stated, the case of the prosecution is that, on August 14,

1995 at about 2.30 p.m., Mohur Biswas, son of late Bharesh

Biswas was murdered by the appellant. There was an altercation

between the appellant and Mohur Biswas, subsequent to which

the incident took place. PW-1, Soleman Biswas lodged a written

complaint with the police upon which a police case was

registered being police case no. 71/95 dated August 14, 1995

under Section 302 of the IPC.

3. Police investigated the written complaint after registration of the

First Information Report (FIR). On conclusion of the

investigation, the police submitted the charge sheet. Charges

were framed against the appellant on July 21, 2005. The

appellant pleaded not guilty and claimed to be tried.

4. At the trial, the prosecution examined 7 witnesses. The

prosecution tendered 6 documents as exhibits, which were

marked as Exhibits 1-6. The prosecution also tendered material

exhibits which were marked as exhibits 1, 1/1 and 1/2. At the

conclusion of the evidence of the prosecution, the appellant was

examined under Section 313 of the Cr.P.C. He pleaded his

innocence in such statement and declined to adduce any defence

witness.

5. By the impugned judgment of conviction the appellant was found

guilty of murder of Mohur Biswas. The appellant was sentenced

to suffer rigorous imprisonment and to pay a fine of Rs.50,000/-

and in default to suffer further rigorous imprisonment for

another 5 years.

6. Learned advocate appearing for the appellant submits that, the

prosecution failed to prove the charge against the appellant

beyond reasonable doubt. He submitted that, the charge framed

as against the appellant is vague. In support of such contention,

he refers to the charge framed. He submits that the charge is not

in consonance with the requirements of Section 212 of the

Criminal Procedure Code. He relies upon 2014 (1) C Cr LR (Cal)

171 (Rebati Baidya & Ors. -vs- State of West Bengal) in

support of such contention.

7. Learned advocate appearing for the appellant draws the attention

of the Court to the evidence led by the prosecution. He submits

that, the prosecution did not prove the case beyond reasonable

doubts. He refers to the evidence of PW-1. He submits that, there

was an altercation with regard to a fencing dispute upon which

the incident occurred. He contends that the appellant did not

have any premeditation to kill the victim.

8. Learned advocate appearing for the appellant relies upon 2000

SCC (Cri) 1230 (Bhera-vs- State of Rajasthan), 2020 Volume

12 SCC 564 (Sakanath Prasad -vs- State of Uttar Pradesh),

2002 volume 3 Supreme Court Cases 327 (Sukhbir Singh -vs-

State of Haryana), 2019 volume 5 Supreme Court Cases 224

(Nandlal -vs- State of Maharashtra), 2020 volume 1 Calcutta

Criminal Law Reporter (Calcutta) 120 (Ranjan Karmakar -vs-

State of West Bengal) and 2021 volume 10 Supreme Court

Cases 744 (Kala Singh -vs- State of Punjab) in support of his

contention that, the appellant in the facts and circumstances of

the present case, can at best be convicted under Section 304 part

II of the Indian Penal Code, 1860.

9. Learned Advocate for the appellant submits that, the appellant

should be acquitted on the ground of the prosecution failing to

prove its case beyond reasonable doubt and the charge framed

being vague. Alternatively and without prejudice to the

contention of acquittal, the appellant at best can be convicted

under Section 304 part II of the Indian Penal Code, 1860 as the

offence is under Section 30D Exception 4.

10. Learned Additional Public Prosecutor appearing for the State

submits that the prosecution proved the case beyond reasonable

doubt and the judgment of conviction and the order of sentence

should be upheld. Referring to the facts and circumstances of the

case, learned Additional Public Prosecutor submits that, the

murder weapon used was a "hasua". He points out to that, a

"hasua" is usually used to cut grass or crops. He contends that

in order to cut grass by the "hasua" which was used in the

murder, one is required not only to deal a forward blow but also

take the "hasua" back in order to complete the action of cutting.

In the facts and circumstances of the case, he submits that the

blow was not once but it must be at least coupled with the

"hasua" being taken back in order to decapitate the victim. The

victim was decapitated.

11. Learned Additional Public Prosecutor submits that the victim

was not armed. The appellant was in a better position at least, so

far as arms is concerned. The appellant acted with the intention

of severing the neck from the body, as will appear from the action

of the appellant in choosing that part of the body of the victim

only. He draws the attention of the Court to the fact that, at trial

no evidence was led to prove that the appellant suffered any

injury. There was no exchange of blows between the appellant

and the victim. According to him there was no free fight between

the appellant and the victim for the appellant to be provoked and

deal the blow on the victim.

12. On the aspect of what free fight means, learned Additional

Public Prosecutor relies on (1978) 3 SCC 330 (Bhagwan

Munjaji Pawade -vs- State of Maharashtra).

13. He relies on (2019) 10 SCC 323 (Awadesh Kumar -vs-

State of Uttar Pradesh & Anr.) and submits that in the facts

and circumstances of the present case, the appellant should be

held guilty of murder.

14. Learned Additional Public Prosecutor refers to the statement

of the appellant recorded under Section 313 of the Cr.P.C.. He

submits that in such statement, the appellant states that he

removed the body from the spot. Therefore, the presence of the

appellant at the spot is proved. Moreover, his action of removing

the body demonstrates that the appellant did not show any signs

of remorse after the incident.

15. Referring to Section 304 of the Indian Penal Code, 1860

learned Additional Public Prosecutor submits that four

conditions must be fulfilled in order to attract the same. In the

facts and circumstances of the present case, at least two of such

conditions are missing. Therefore, according to him, the

judgment of conviction and the order of sentence should be

upheld.

16. In reply, learned advocate for the appellant submits that the

appellant and the victim both were armed with "hasua". He refers

to the cross examination of PW-1 to contend that the victim and

the appellant both were armed with "hasua". The appellant did

not take any advantage of the victim.

17. The appellant was charged with murder of Mohur Biswas.

Charge was framed against the appellant on July 21, 2005.

Charge states that on August 14, 1995 at about 14.30 hours at

Laskarpur, Domkal Police Station, District Murshidabad, the

appellant committed murder intentionally causing death of

Mohur Biswas.

18. It is contended on behalf of the appellant that, the incident

occurred at the house belonging to Mohur while he was making

fencing. The charge does not describe the locale at where the

incident occurred and, therefore, is vague. In support of such

contention, reliance is placed on Rebati Baidya (Supra).

19. In Rebati Baidya (Supra), charges were modified twice after

the first framing of the charges. The last of the modifications was

after the conclusion of the evidence of the prosecution, the

recording of the statement of the accused under Section 313 of

the Cr.P.C. and the conclusion of the arguments. Not only was

the charge re-framed in such circumstances but also one of the

accused was deleted and substituted by another person. In such

factual scenario, it was held that the charge was defective and

resulted in an unfair trial against the accused. The factual

scenario in the present case is different. The charge initially

framed on July 21, 2005 was never altered. None of the accused

was replaced or substituted. There was only one accused, that is,

the appellant. The appellant was well aware of the place of

occurrence as his reply to a question no. 16 put to him under

Section 313 of the Criminal Procedure Code establishes.

20. The appellant is unable to say that the appellant suffered

any prejudice by the nature of the description of the incident as

appearing in the charge. The charge said that, the incident

occurred on August 14, 1995. The date of the occurrence is also

specified in the charge. Time of the occurrence is specified. There

is a description of the locale where the incident occurred. The

awareness of the appellant as to the place of occurance will

appear from his reply to question no. 16 in his statement

recorded under Section 313 of the Criminal Procedure Code. The

appellant was not prejudiced by the nature of charge as framed

at the trial. Therefore, we are of the view that none of the

provisions of Section 212 of the Cr.P.C. was violated.

21. PW-1 is an eye-witness. He is the brother of the victim. He

states in his evidence that on August 14, 1995 at about 14.30

hours, while Mohur was fencing their house, an altercation took

place between Mohur and the appellant. In course of such

altercation, the appellant brought out a "hasua" and inflicted the

same on the neck of Mohur as a result of which Mohur fell down

and died at the spot. PW-1 continues to say that he went to the

police station and lodged a written complaint. He states that he

was present at the spot. His complaint was marked as exhibit-1.

22. In cross examination, he states that, his brother was also

armed with the hasua at the time of fencing.

23. Learned advocate appearing for the appellant draws the

attention of the Court to the cross examination of PW-1 and

submits that there was a discussion as to who should be the

accused in the murder case. Such discussion took place at the

village after the incident. PW-1 admits the same in the cross

examination. Therefore, such evidence in cross examination read

with the statement of the appellant recorded under Section 313

of the Cr.P.C., where the appellant claims that the appellant

removed the body of the victim, establishes that the appellant

was not involved in the murder, rather it was somebody else. The

appellant, at best removed the body. The appellant was falsely

implicated.

24. With deepest respect, we are unable to subscribe to such

contention of the appellant. There is overwhelming evidence of

the eye witness being the PW-1, implicating the appellant in the

incident. The eye witness describes how the appellant dealt the

blow and how the incident took place. The death of the victim as

described by PW-1 in his evidence stands corroborated by the

post mortem report of the victim being exhibit-4 as also the

evidence of the post mortem doctor being PW-6.

25. P.W. 2 is another witness who in his depositions states that

he saw the appellant dealing with the blow. He corroborates the

evidence of P.W.1. He states that after inflicting the blow the

appellant fled away from the place of occurrence. In cross-

examination, he narrates that there was an altercation between

the appellant and the victim. He further states in his cross-

examination that he is giving evidence for the first time in Court

with regard to the incident.

26. With regard to the evidence of P.W.2, learned Advocate for

the appellant contended that, the appellant claimed to be of 18

years of age at the time of giving the evidence. The incident

occurred ten years back. Therefore, it was impossible for an

eight year old child to remember the details of the incident and

depose as to the same and that too for the first time in Court.

27. P.W.2 claims himself to be an eye-witness. Going by the

materials-on-record, he was eight years old at the time when

the incident occurred. The incident is of murder. He deposed

at the trial at the age of 18 when he was sufficiently matured.

We do not find any ground to discredit P.W.2 simply on the

ground of his age when he narrates the incident and when there

is no deviation between the evidence of P.W.1 and his evidence.

28. More surprisingly, in cross-examination, the appellant could

not elicit anything favourable to them from the evidence of

P.W.2 as to discredit the evidence of PW-2.

29. P.W.3 is a post-occurrence witness. P.W.3 states that on

hearing the cry of P.W.2, he went to the spot and found the

deceased dead. P.W.3 corroborates the presence of P.W.2 at the

place of occurrence. Again in cross-examination, nothing

favourable was elicited from P.W.3 by the appellant.

30. P.W.4 is the scribe of the written complaint lodged by the

P.W.1 being Exhibit-1. P.W.5 is the post-occurrence witness

who was present at the inquest examination of the victim and at

the time of the seizure.

31. P.W.6 is the Medical Officer performing the post-mortem

examination of the dead body of the victim. He tendered the

post-mortem report which was marked as Exahibit-4. In his

opinion, the death was homicidal and ante-mortem in nature.

He explained the opinion that he gave by mistake in the post-

mortem report which states that the death was accidental and

ante-mortem in nature. He states that if sharp-cutting weapon

like a 'Hasua' is inflicted in force, then the injury as suffered by

the victim can be caused resulting in death of the victim.

32. Only one question is put in cross-examination to the post-

mortem doctor. Nothing favourable to the appellant was elicited

from the post-mortem doctor.

33. P.W.7 was the Officer-in-Charge of Domkal Police Station

who received the complaint from P.W.1. He was the

Investigating Officer. He narrates the steps he took in the

investigations. Again nothing favourable was elicited from

P.W.7 on behalf of the appellant.

34. In his examination in 313 of the Code of Criminal Procedure,

the appellant claimed that he was at his home. At 9 a.m. on the

day of the occurrence he heard that the victim was murdered in

Jute field. On hearing the same, he saw the body of the victim

picked it up and placed it in another place. The police came

and picked him away. He is innocent. He was falsely

implicated.

35. The evidence produced in Court at the trial establishes the

following facts:

(i) Mohur Biswas died out of injury suffered at the neck

resulting in decapitation, homicidal and ante-mortem in

nature. This is established by the post-mortem report of

Mohur Biswas being Exhibit-4 and the evidence of P.W.6,

being the doctor who conducted the post-mortem;

(ii) P.W.1 and 2 established that the appellant dealt the blow on

the neck of the victim with a "hasua";

(iii) The post-mortem report being Exhibit-4 does not show that

the victim suffered any other injuries apart from him being

decapitated.

(iv) 'Hasua' being used by the appellant in the incident is

established by the evidences of PW-1 and PW-2. PW-6 who is

the doctor who conducted the post mortem stated in his

evidence that, if sharp cutting weapon like a "hasua" is

inflicted in force, then the injury suffered by the victim can

be caused resulting in death of the victim.

(v) There was an altercation between the appellant and the

victim on the issue of fencing at the house of the victim on

August 14, 1995 at about 14.30 hours.

(vi) The prosecution witnesses corroborated each other in their

evidences. P.W.1 and 2 corroborated each other. P.W.3

corroborated the presence of the P.W.2. P.W.2 and 1

corroborated each other with regard to their presence at the

place of occurrence.

36. The trial court returned a finding of murder as against the

appellant and convicted the appellant under Section 302 of the

Indian Penal code, 1860. The evidence on record leads us to hold

that the appellant was responsible for the death of Mohur

Biswas. As to whether the death was culpable homicide

amounting to murder or not amounting to murder is the issue

which requires consideration.

37. In other words, since the appellant contends that the

Exception 4 of Section 300 is altercated, The issue before us is

whether the conviction under Section 302 of the Indian Penal

Code and the order of sentence consequent thereto should be

upheld or that the appellant should be convicted under Section

304 and commensurate sentence imposed or not.

38. In Sukhbir Singh (Supra) on appreciation of the

evidence it was, held that, the infliction of the injuries and their

nature proves the intention of the accused but causing of such

two injuries could not be termed to be either in cruel or

unusual manner. It was noted that, all fatal injuries resulting

in death cannot be termed as cruel or unusual for the purposes

of not availing the benefit of Exception 4 of Section 300 of the

Indian Penal Code, 1860. In the facts of the present case, the

punishment under Section 302 of the Indian Penal Code, 1860

was set aside. The accused was held guilty for the commission

of offence of culpable homicide not amounting to murder

punishable under Section 304 (Part I) of the Indian Penal Code,

1860 and sentenced to undergo rigorous imprisonment for ten

years and to pay fine.

39. In Sankath Prasad (supra), the Supreme Court in the

facts of that case found that, the intention was to kill PW 1

therein. However, the son of the PW 1 was killed. In such

circumstances, conviction under Section 302 of the Indian

Penal Code, 1860 was converted to one under Section 304 Part

I of the Indian Penal Code, 1860.

40. In Ranjan Karmakar (supra), the Division Bench of

this Hon'ble Court found that, the accused was provoked by the

victim by saying in a demeaning manner that the accused could

do whatever he wanted to and that the victim did not care. The

Division Bench also found that, on a preponderance of

probabilities on the basis of the evidence on record, the

possibility of the accused being provoked by the victim could

not be ruled out. In such circumstances, the Division Bench

converted the conviction under Section 302 of the Indian Penal

Code, 1860 to Section 304 thereof.

41. In Nandlal (Supra), the Supreme Court observed as

follows:

"13. In order to bring the case within Exception 4 to Section 300 IPC, the following conditions enumerated therein must be satisfied: (i) The act must be committed without premeditation in a sudden fight in the heat of passion; (ii) upon a sudden quarrel; (iii) without the offenders having taken undue advantage; and (iv) the accused had not acted in a cruel or unusual manner.

14. Even if the fight is unpremeditated and sudden, if the weapon or manner of retaliation is

disproportionate to the offence and if the accused had taken undue advantage of the deceased, the accused cannot be protected under Exception 4 to Section 300 IPC. Considering the scope of Exception 4 to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa, this Court held as under: (SCC pp. 396-97, paras 7-8)

"7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. ... There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not

sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."

(emphasis supplied) The same principle was reiterated in Pappu v. State of M.P. [Pappu v. State of M.P., (2006) 7 SCC 391 : (2006) 3 SCC (Cri) 283] and in Surain Singh v.

State of Punjab [Surain Singh v. State of Punjab, (2017) 5 SCC 796 : (2017) 3 SCC (Cri) 461] where the conviction under Section 302 IPC was modified under Section 304 Part II IPC.

42. In light of the discussion of the law as noted above, the

Supreme Court in Nandlal (supra) found that, there was an

altercation and fight. PW 1 gave a stick-blow on the head of the

accused. It was thereafter, the accused went to his house and

returned armed with 'gupti' and inflicted injury with 'gupti' on the

left armpit of the victim. The above incident happened only after

the exchange of abuse and the stick-blow given by the P.W. 1 on

the head of the appellant.

43. In Kala Singh alias Gurnam Singh (Supra), it was found on

appreciation of the evidence that, the incident was a result of a

sudden fight, on the spur of the moment, and upon a sudden

quarrel. It was also found that it was not a premeditated one

with no intention on the part of the accused to cause death or

cause such bodily injury as is likely to cause death. In such

circumstances, the conviction was modified from Section 304 Part

I of the Indian Penal Code, 1860 to one under Section 304 Part II

thereof.

44. Two of the authorities cited on behalf of the prosecution

requires consideration.In Bhagwan Munjaji Pawade (supra), it

was observed that, "Fight postulates a bilateral transaction in

which blows are exchanged." In the facts of that case, it was

found that the deceased was unarmed. He did not cause any

injury to the accused or his companion. Moreover, there were

three fatal injuries, which were inflicted by the accused with a

formidable weapon on the unarmed victim. In such

circumstances, the Supreme Court found that the accused was

not entitled to the benefit of Exception 4 to Section 300 of the

Indian Penal Code.

45. In Awadhesh Kumar (supra), it was held that, the incident

occurred after a considerably period of time elapsing from an

altercation. In such circumstances, Their Lordships found that

there was an error in applying Exception 4 to Section 300 of the

Indian Penal Code, 1860 in the facts of that case.

46. P.W. 1 in his evidence stated that there was an altercation

between the victim and the appellant. The evidence of P.W. 1

establishes that both the victim and the appellant were in

possession of a 'hasua'. Hasua is an instrument used by farmers

in rural Bengal for the purpose of cutting grass or crops. One side

of the 'hasua' is sharp.

47. The appellant here claims to come under Exception 4 of

Section 300 of the Indian Penal Code, 1860. Nandlal (supra)

notes that in order to prove the act to come within Exception 4 to

Section 300 it must be satisfied that, the act was committed

without premeditation, in a sudden fight, in the heat of passion,

upon a sudden quarrel, without the offender taking undue

advantage and the accused not acting in a cruel or unusual

manner.

48. In Nandalal (supra), a blow with gupti on the left armpit was

inflicted which ultimately pierced the upper end of the left arm

and then entered the chest causing fracture of the fourth rib and

reached till the lung causing rapture on the left lung vasculature.

In such circumstances, it was found that there was no intention

to murder.

49. In the facts of the present case, a 'hasua' was used on the

neck of the victim. The choice of the part of the body of the victim

is significant. The choice of neck of the victim and the brutal force

applied in the blow inflicted on the victim with a "hasua"

decapitating him, are action which can be said that the appellant

acted in a cruel and unusual manner. There was premeditation of

murdering the victim based on the choice of the part of the body

to inflict the blow with such force. Part of the body chosen and

the force applied to inflict the blow with a "hasua" are crucial in

the facts and circumstances of the present case. The postmortem

report of the victim as well as the evidence of P.W. 6 establishes

that the neck of the victim was separated from his body by the

blow inflicted by the appellant.

50. In our case even assuming that the provocation was grave

and sudden, the cool and calculating conduct of the appellant,

either before or immediately after the provocation, reveals that his

acts were not the result of an uncontrollable impulse which over

powered him but were committed in pursuance of a plan to take

revenge, and by such act the appellant can not invoke 'the law's

benignity'. In the facts of the prsent case, the plea of grave and

sudden provocation would fall due to an additional test, which is

not whether the conduct of the appellant was reasonable but

which requires that the appellant must be shown to be deprived

of self-control when he committed homicide. There is no evidence

to such effect.

51. Evidence of PW-1 and 2 does not suggest that there was a

fight between the victim and the appellant in the sense that, the

victim dealt any blow on the appellant. Appellant did not bring

any evidence on record to suggest so. The manner or nature of

the alleged grave provocation to the appellant so as to result in

the appellant losing self control is not established. In fact, at the

trial it was never suggested, let alone established that, the

appellant acted under grave and sudden provocation losing his

self control due to it.

52. In view of the discussions above, we find no inference is

required in the trial Court's order imposing the punishment

under Section 302 against the appellant. We find no merit in the

present appeal.

53. CRA 11 of 2021 is dismissed. CRAN 1 of 2021 is an

application for grant of bail. In view of the dismissal of the appeal,

no order can be passed in CRAN 1 of 2021 excepting dismissing

the same. CRAN 1 of 2021 is also dismissed.

(Debangsu Basak, J.)

54. I Agree.

(Bibhas Ranjan De, J.)