Khokan Sardar & Anr vs State Of West Bengal
2022 Latest Caselaw 423 Cal

Item No. 21




                IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Rabindranath Samanta

                             C.R.A. 312 of 2004
                                       with
                       CRAN 2 of 2005(Old CRAN 01 of 2005)
                                       with
                      CRAN 6 of 2020 (Old CRAN 499 of 2020)

                             Khokan Sardar & Anr.
                                      -Vs-
                             State of West Bengal

For the Appellants      :     Mr. Jayanta Narayan Chatterjee, Adv.
                              Ms. Nandini Chatterjee, Adv.
                              Mr. Nazir Ahmed, Adv.
                              Ms. Jayashree Patra, Adv.
                              Ms. Ritushree Banerjee, Adv.
                              Mr. Subhradeep Koley, Adv.

For the State           :     Mr. Saibal Bapuli, learned APP
                              Mr. Bibaswan Bhattacharyya, Adv.

Heard on                :     9th February, 2022

Judgment on             :     9th February, 2022


Joymalya Bagchi, J. :-

         The appeal is directed against the judgment and order dated

29.04.2004

and 30.04.2004 passed by the learned Additional Sessions

Judge, 4th Court, Howrah, in Sessions Trial No. 557 of 2003 convicting the

appellants for commission of offence punishable under Sections 302/34 of

the Indian Penal Code and sentencing them to suffer rigorous imprisonment

for life and pay a fine of Rs.10,000/- each, in default to suffer rigorous

imprisonment for a period of two months more.

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

that on the fateful day i.e. on 17.09.2003 when Biswakarma Puja was being

celebrated, the appellants had been teasing girls. Deceased, namely, Shakti

Sankar Kanrar objected to such undesirable behaviour of the appellants.

This enraged the appellants. They ran to the shop of one Sofiar Molla and

brought out an iron pati (a flat iron rod) and upon the instruction of Abed

Ali Sardar (appellant no. 2) appellant no. 1 (Khokan Sardar) struck on the

head of the deceased. As a result, the deceased suffered bleeding injury on

the head. He fell down at the spot. He was rushed to the hospital where he

expired on 20.09.2003. First information report was lodged by Sandip

Kanrar, brother of the deceased, on 17.09.2003 being Sankrail Police

Station Case No. 136 of 2003 dated 17.09.2003 under Sections 326/307/34

of the Indian Penal Code. Upon death of the victim, Section 302 of the

Indian Penal Code was added to the F.I.R. Appellants were arrested and the

weapon of offence was recovered. Charge-sheet was filed against the

appellants and charge was framed under Section 302/34 of the Indian Penal

Code against the appellants and Sofiar Rahaman Molla. They pleaded not

guilty and claimed to be tried. Defence of the accused persons was one of

innocence and false implication. In the course of trial, prosecution

examined 15 witnesses and exhibited a number of documents. On

conclusion of trial, learned trial Judge by the impugned judgment and order

dated 29.04.2004 and 30.04.2004 convicted and sentenced the appellants,

as aforesaid. By the self-same judgment and order, learned trial Judge was

pleased to acquit Sofiar Rahaman Molla of the charges levelled against him.

Mr. Chatterjee, learned Counsel appearing for the appellants argues

that the place of occurrence has not been established. Investigating officer

did not seize blood stains from the place of occurrence. None of the local

shop owners was examined. Eye-witnesses are chance witnesses and their

presence at the place of occurrence has not been established beyond doubt.

He further submits that iron pati and iron rod is not the same. Recovery of

iron rod on the showing of the appellants has not been proved. No statement

of the appellants was recorded during investigation. He also submits as co-

accused Sofiar Molla has been acquitted, the prosecution case to the extent

appellants had brought the weapon of offence from his shop has been

disbelieved by the trial Judge. He further submits appellant No. 2 had not

assaulted the deceased and did not share common intention to murder the

victim. Incident occurred in the course of a sudden altercation and on the

spur of the moment appellant No. 1 had dealt a single blow on the victim.

Hence, he did not intend to murder the deceased. Accordingly, he prays for

acquittal of the appellants.

In reply, Mr. Bapuli, learned Additional Public Prosecutor submits

that the appellants had been teasing girls in the locality. The deceased

objected to such conduct. This enraged the appellants. They rushed to the

shop of one Sofiar Molla and brought out an iron pati and surrounded the

deceased. Thereafter, on the instruction of Abed Ali Sardar, appellant No. 2,

Khokan Sardar, appellant No. 1 assaulted the deceased on his head. Victim

suffered head injury which caused extensive damage to the internal organs

and he died. Post mortem doctor (P.W. 12) stated that the injury was

sufficient in ordinary course of nature to cause death. Conduct of the

appellants, nature of weapon used to assault the deceased and the grave

nature of injury suffered which was sufficient in ordinary course of nature to

cause death clearly proves the appellants shared common intention to

murder the victim. Hence, the appeal is liable to be dismissed.

In order to examine the issues raised on behalf of the appellants, it is

necessary to summarise the evidence on record.

P.W. 1, Sri Sandip Kanrar, is the brother and first informant in the

instant case. He deposed that on 17.09.2003 at 8 p.m. the incident occurred

at Champatala near Mini Truck Stand under P.S. Sankrail. When he arrived

he found that his brother lying with injury. Victim was taken to P.G.

Hospital in serious condition and thereafter shifted to Calcutta Hospital

where he died on 20.09.2003. He lodged written complaint which was

scribed by P.W. 9. He proved his signature on the complaint. In cross-

examination, he stated that he came to know that there was dispute over

women in the fair.

P.Ws. 2 to 6 and 10 are the eye-witnesses to the incident.

P.W. 2, Protap Kanrar, deposed that on the relevant date he had

come to the market to purchase cloth from a shop which was situated

beside the Mini Truck Stand at Champatala under P.S. Sankrail. He saw the

appellants took out an iron pati from the shop of Sofiar Molla and

surrounded the victim, Shakti. Upon the direction of Abed Ali Sardar,

Khokan Sardar assaulted Shakti on the head with the iron pati. As a result,

Shakti fell down on the ground. He was bleeding profusely. Then P.W. 2

along with P.W. 1 Sandip Kanrar and others took Shakti to P.G. Hospital

and from there to Calcutta Hospital where he was admitted. On 20.09.2003

Shakti expired at the hospital. He also deposed that Khokan and Abed were

teasing girls which was protested by Shakti. Thereafter, he had been

assaulted. He is the signatory on the inquest held over the body of Shakti

by the police (P.W. 13). He proved his signature on the inquest report.

In cross-examination, he stated that Shakti had fallen in front of

Gouranga Hotel which was 60/70 cubits from the stand.

P.W. 3, Sailen Chowdhury, is another eyewitness who was standing

in front of Mini Truck Stand. He deposed that that there was an incident of

teasing of girls. Shakti tried to remove the miscreants. Thereupon Abed Ali

brought out an iron pati from the shop of Sofiar and Khokan assaulted

Shakti with that iron pati on the right side of his head. As a result, Shakti

sustained bleeding injury and fell down. He was shifted to the hospital. This

witness also deposed that at 10.45 p.m. police came to the spot along with

the appellants. On showing of Khokon, the iron pati was recovered from a

jungle near the Doba behind the Mini Truck Stand. He was the signatory of a

seizure list. He identified the iron pati in Court.

P.W. 4, Prabir Chakraborty, deposed that on 17.09.2003 at about

08.00 p.m, he was returning from a laundry near Mini Truck Stand at

Champatala More. He saw Abed Ali and Khokon take out an iron pati from

the shop of Sofiar and rushed towards Gouranga Hotel in front of Mini Truck

Stand. Thereafter, upon direction of Abed Ali, Khokan assaulted Shakti on

the head. He also deposed that the appellants were teasing girls, which had

been opposed by the victim. He was a signatory of the inquest held over the

dead-body. He also identified the weapon of offence.

Similarly, P.W. 5, Dipen Bag and P.W. 6, Partha Pratim Banerjee had

witnessed the incident and corroborated the version of P.W. 2 and P.W. 4

herein. P.W. 5 had come to the market to purchase medicine from

Janakalyan Medicine Shop while P.W. 6 had been returning from a Xerox

Printing Shop after printing some papers. P.W. 6 was running a Coaching

Centre in his house.

P.W. 10, Ram Pratap Kahar is a driver of a Mini Truck in the Truck

Stand. On 17.09.2003, at about 08.00 p.m. he was standing in front of the

Mini Truck Stand. At that time, he found Abed Ali and Khokan were teasing

girls during Biswakarma Puja. Shkakti asked them not to do so. Thereafter,

the appellants went to the shop of Sofiar and brought an iron pati and

surrounded Shakti. On the direction of Abed Ali, Khokan assaulted Shakti

on the head with the iron pati. Khokan attempted to give a second blow but

he resisted. The victim fell down on the floor. The miscreants ran away with

the iron pati. Shaki was removed to a hospital in a Maruti Car.

Subsequently, Police brought Abed and Khokan to the spot. Abed and

Khokan took the Police to the backside of the Mini Truck Stand and brought

out the iron pati. He was a signatory to the seizure list of the weapon of

offence. He identified the weapon of offence in the Court. These are the

witnesses of fact.

Medical witnesses of the instant case are P.Ws. 7, 11 and 12.

P.W. 7, Dr. Ajoy Agarwal, is the consultant Neurology Surgeon who

was attached to CMRI, Calcutta. He deposed that on 17.09.2003 at about

09.10 p.m., Shakti Kanrar was admitted in hospital under him. As per the

statement of the patient party, he was assaulted with iron rod following

which the patient sustained severe lacerated injuries on the right side of

forehead with active bleeding from nose. He proved the injury report as well

as the bed head ticket marked as exhibits 4 and 5. On examination of the

patient, he found there was right frontal lacerated wound about 10 cm. long

with bone fragments, blood was oozing out from contused brain. Right black

eye with cross sub-conjunctival haemorrhage. The patient was operated

upon but expired on 20.09.2003 at 11.55 p.m..

P.W. 11, Dr. Amit Banerjee, was the Registrar of the said Hospital at

the relevant time. When he examined the patient, he found the following

injuries:-

"Black eye 3" lacerated injury over the right side of his skull with

pulper conjunctival haemorrhage."

Upon being shown the weapon of offence, he deposed that the injury

could be caused by the said weapon.

P.W. 12, Dr. P. B. Das, is the post-mortem Doctor. He found the

following injuries on the deceased.

"i) Abrasion over left side frontal region placed side-to-side measuring 2½"x1½".

ii) Abrasion over dorsal of left and placed side-to-side measuring 1"x½".

iii) Abrasion over back of right arm lower part measuring 1"x1".

iv) Bruises over right side of neck and anteriorly measuring 3½"x2".

v) Thick bruises over whole of skull.

vi) One stitched up wound over right side of forehead to left side placed obliquely with 16 stitches. On removal of the stitches it measured 5"x½" x bone deep.

vii) person of frontal bone removed and refixed with guidance of compound fracture of frontal bone."

He opined death was due to the effect of head injury, ante-mortem and

homicidal in nature. He further clarified that the head injury was sufficient

to cause death in ordinary course of nature. He also stated that the injury

could be caused by the iron rod seized, material exhibit 1. The head injury

was caused by a single stroke. Abrasions and bruises were due to fall on the

ground after the head injury upon being hit on the head.

P.W.- 5, Durga Prasad Nandy, is the Investigating Officer of the case.

He visited the place of occurrence in front of Gouranga Hotel at Champatala.

He prepared the rough sketch map, marked as exhibit 9. He arrested the

accused persons. They accompanied him to the place of occurrence and they

took him to the Mini Truck Stand. Khokan Sardar brought out the iron pati

from the shrubs behind the Mini Truck Stand. He seized the article under

seizure list, exhibit 3/1. He identified the iron pati, material exhibit 1. He

examined the witnesses under 161 of the Code of Criminal Procedure. Upon

death of Shankar, he made prayer for adding Section 302 of the Indian Penal

Code. He collected the inquest report. He submitted the charge-sheet. In

cross-examination, he stated that no blood stained earth was seized from the

place of occurrence. He did not examine the shop-owners on both the sides

of the road. He did not examine anyone of the Gouranga Hotel.

Evidence of the eyewitnesses, P.Ws. 2 to 6 and 10 has been criticized

by Mr. Chatterjee on the ground that they are chance witnesses. He

emphasized, the prosecution has not examined the most probable witnesses,

namely, the shop-owners in and around the Mini Truck Stand. Hence the

prosecution case is a concocted one and founded on unreliable evidence. It is

also argued that the place of occurrence has not been fixed.

Upon deeper scrutiny of the evidence of the eyewitnesses we find that

each of the witnesses has explained the circumstances in which they were

present at the place of occurrence.

P.W. 2 stated that he came to collect clothes from the shop behind the

Mini Truck Stand while P.W. 4 is the owner of a luxury taxi and, therefore,

his presence near the Mini Truck Stand is quite plausible. P.W. 4 stated that

he had come to the laundry at the Truck Stand. P.Ws. 5 and 6 also

explained their presence at the place of occurrence for making purchase

from a medicine shop or collecting printed papers from a Xerox Printing

Shop respectively. P.W. 10 is the owner of a mini truck and his presence at

the place of occurrence is most probable.

In view of the aforesaid explanations offered by the witnesses, I am of

the opinion, their presence at the place of occurrence is quite natural in the

ordinary course of events. They have no enmity with the appellants. Nor are

they related to the victim. They are disinterested witnesses. Their depositions

are consistent to one another and do not suffer from any patent

contradiction or improbability. All the witnesses were extensively cross-

examined and have withstood such examination. Hence, I have no doubt in

my mind that the aforesaid eyewitnesses are reliable and trustworthy in

nature. In this backdrop, non-examination of the local shop-owners do not

affect the unfolding of the prosecution case or render it unreliable in any

manner whatsoever. Furthermore, the version of the prosecution witnesses

find corroboration from the injuries noted by the medical witnesses, namely,

P.Ws. 7, 11 and 12. All these witnesses found severe injury on the right side

of the head of the victim resulting in fracture and extensive internal

haemorrhage. They also deposed that such injury could be caused by the

iron pati, which was seized in the instant case.

Thus, the ocular version of the eyewitnesses has been squarely

corroborated by the medical witnesses.

Place of occurrence has also been established through the evidence of

eye witnesses. All of them stated Shakti was assaulted near Mini Truck

Stand and he fell in front of Gouranga Hotel which was almost adjacent to

the truck stand being 60/70 cubits away. Thus, there is no shifting of the

place of occurrence. Under such circumstances, non-seizure of blood stained

earth by investigating officer is a defect in investigation which does not affect

the credibility of the prosecution case.

With regard to the submission, there is variation between the

description of the weapon of offence by the eyewitnesses and the one seized

in the course of investigation, I am of the opinion that the same is without

substance. The eyewitnesses claimed the weapon was an iron pati or a flat

iron rod. P.W. 15 on the showing of the first appellant had recovered an iron

pati as per seizure list (Exhibit 3/1). The medical witnesses unequivocally

stated that the seized weapon of offence could be used to cause the injury

found on the deceased. In this backdrop, I am of the view the seized weapon

(material Exhibit 1) was the weapon of offence and there is no inconsistency

in the prosecution case on this score.

Hence, I am of the opinion, the prosecution has been able to prove

that the appellants being enraged by the resistance held out by the victim

against their immoral conduct of teasing girls in course of a Puja, had

rushed to a local shop wherefrom they collected the iron pati and

surrounded the victim. Thereafter, on the instruction of the second appellant

the first appellant hit the victim on the head causing fracture injury on the

head and extensive internal hemorrhage. In this backdrop, the acquittal of

Sofiar from whose shop the weapon of offence had been recovered does not

affect the culpability of the appellants in the murder of the deceased.

Lastly, it has been argued that the appellants did not intend to commit

the murder. The second appellant had not assaulted the deceased whereas

the first appellant had dealt only a single blow. Thus, the conviction may be

altered to culpable homicide not amounting to murder. I am unable to

accede to such prayer also for the following reasons:-

(a) Incident not occur in the course of a sudden fight or quarrel. On

the other hand, the appellants were teasing girls who had come to

attend Biswakarma Puja. Shankar Kanrar protested against such

immoral and undesirable conduct of the appellants. This was the

motive of the appellants to commit the murder. Objection held out by

the deceased to the anti-social activities of the appellant cannot by any

stretch of imagination be construed as a sudden fight or quarrel

between the parties.

(b) Offence was not without premeditation. Upon being enraged by

the resistance held out by the victim against their anti-social conduct,

the appellants rushed to the shop of one Sofiar, collected an iron pati

and returned to the spot and surrounded the victim. Thereafter, on the

instruction of the second appellant the first appellant assaulted the

victim on the head with such force that it caused severe fracture

wound as well as extensive internal hemorrhage in the brain. A

premeditated murderous assault by the appellant on the victim to

avenge their grudge against the latter who had objected to their

immoral activities cannot fall within Exception 4 of section 300 of the

Indian Penal Code.

(c) It is true that the appellants had dealt a single blow and the

victim had survived for three days. Hence, they had no intention to

commit murder. Number of blows on a victim is not the only

parameter to determine the intention of the assailants. In the present

case, the assailants had gone to the shop of Sofiar and returned with

the weapon of offence. Thereafter, the first appellant assaulted on the

head with the iron pati on the instruction of the second appellant. The

strike was with a dangerous weapon and on the vital part of the body.

It was with such intense force that it caused injuries, which P.W. 12

opined, was sufficient in ordinary course of nature to cause death.

In Virsa Singh vs. State of Punjab1, the Apex Court held in the

event, the injury caused by the accused is intentional and is sufficient

in ordinary course of nature to cause death, the case will fall within

clause (3) of Section 300 of the Indian Penal Code which runs as

follows:-

"Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death,......"

In the light of the aforesaid proposition of law and of the opinion

of the post-mortem doctor, I have no hesitation to hold that the case

falls within the aforesaid clause under Section 300 IPC and is

punishable under Section 302 of the IPC.

(d) With regard to the role of the second appellant, I am of the

opinion his conduct before, during and after the incident clearly shows

that he shared common intention to murder with the first appellant.

He along with the first appellant was teasing girls. When the victim

opposed their conduct, he along with first appellant rushed to the

shop of Sofiar to collect the weapon of offence. Then they came to the

spot together and upon his instruction, Khokon i.e. the first appellant,

AIR 1958 SC 465

struck at the victim which was sufficient in the ordinary course of

nature to cause death. Thereafter, both of them fled the spot together.

In this backdrop, I am of the opinion that the conviction and sentence

of the appellants are liable to be upheld.

Period of detention suffered by the appellants during investigation,

enquiry and trial shall be set off from the substantive sentence imposed

upon the appellants in terms of Section 428 of the Code of Criminal

Procedure.

The appeal being CRA 312 of 2004 accordingly stand dismissed.

In view of the dismissal of the appeal, connected applications, if any,

are also disposed of.

Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

Photostat certified copy of this judgment, if applied for, shall be made

available to the appellant within a week from the date of putting in the

requisites.

I agree.

(Rabindranath Samanta, J.)                             (Joymalya Bagchi, J.)




sdas/ss/snandy/PA(Sohel)