Sunil Ghosh @ Sunila vs State Of West Bengal
2022 Latest Caselaw 595 Cal

Item No.36




                 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. 420 of 2016
                                  Sunil Ghosh @ Sunila
                                          -Vs-
                                  State of West Bengal

For the Appellant           :       Mr. Sekhar Barman, Advocate.

For the State               :       Mr. Tanmoy Kumar Ghosh, Ld. A.P.P.,
                                    Mr. Narayan Prasad Agarwala, Advocate,
                                    Ms. Subhasree Patel, Advocate.

Heard on                    :       February 16, 2022.

Judgment on                 :       February 16, 2022.

Joymalya Bagchi, J. :-
        The appeal is directed against the judgment and order dated

17.03.2016

and 18.03.2016 passed by the learned Additional Sessions

Judge, 5th Court, Barasat in connection with Sessions Case No. 2(5) 01

(Sessions Trial Case No. 04(5) 03) convicting the appellant for

commission of offence punishable under Section 304 Part I of the Indian

Penal Code and sentencing him to suffer imprisonment for life and to pay

a fine of Rs.2,000/- in default to suffer simple imprisonment for three

months more.

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

that on 08.02.1999 at around 10.45 p.m. while Swarup Chakraborty was

making arrangement to go to bed, the appellant knocked on the door.

Upon entering the house, he stabbed Swarup in his abdomen with a gupti

which was hidden under a brown shawl. Parents of the deceased were

present in the house and tried to intercept the appellant. In their attempt,

they were able to snatch the shawl and the handle of the weapon from

him. Thereafter, they took their injured son to Khardah Police Station,

then to Balarampur Hospital and finally to N. R. S. Hospital where the

victim expired in the night of between 09.02.1999 and 10.02.1999.

Written complaint was lodged by Anil Kr. Chakraborty, father of the

deceased resulting in registration of Khardah P. S. Case No. 56 of 1999

dated 10.02.1999 under Section 304 of the Indian Penal Code. In

conclusion of investigation, charge sheet was filed against the appellant.

Charge was framed under Section 304 of the Indian Penal Code. In course

of trial, prosecution examined 9 witnesses. Anil Kr. Chakraborty, father of

the deceased and the informant in the instant case could not be examined

as he had expired. Defence of the appellant was one of innocence and

false implication. He, however, did not examine any witness in his favour.

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

dated 17.03.2016 and 18.03.2016 convicted and sentenced the appellant,

as aforesaid.

Mr. Sekhar Barman, learned Advocate appearing for the appellant

argues that the eye witnesses viz., mother and wife of the deceased are

unreliable. Mother of the deceased (P.W. 1) stated she was in bed and did

not find the appellant hit her son. P.W. 2, wife of the deceased stated she

was living separately prior to the incident. Thus they could not be treated

as eye witnesses and their evidence is of no value. Hence, the prosecution

case that the appellant had struck the victim with a gupti resulting in his

death has not been proved. There is no motive to commit the crime.

Weapon of offence has not been seized. Appellant is presently on parole.

Under such circumstances, he prays that the appeal may be allowed and

the conviction and sentence of the appellant be set aside.

Mr. Tanmoy Kr. Ghosh, learned Advocate appearing for the State

submits that P.W. 1 is the most natural witness to the incident. She

deposed she was in the house along with her husband when the incident

occurred. She tried to save her son and had snatched the shawl along

with the cover of the gupti from the appellant. Her deposition is

corroborated by other prosecution witnesses as well as medical evidence.

Hence, the prosecution case is proved beyond doubt. The appeal is liable

to be dismissed.

Prosecution has examined P.W. 1, mother of the deceased and P.W.

2, wife of the deceased as eye witnesses.

P.W. 1, Tapati Chakraborty deposed she along with her husband

and minor daughter was in the house at the time of occurrence. She

further claimed around 10.45 p.m., the appellant inserted gupti into the

stomach of her son. She caught hold of the appellant and his wearing

apparels i.e. chadar came to her hand. She took the victim to Khardah

Police Station, thereafter to Balarampur Hospital and from there to N. R.

S. Hospital.

P.W. 2, Nilima Chakraborty deposed on the date of the incident, the

appellant came to their house and knocked on the door. Her father-in-law

opened the door. There was altercation between her husband and the

accused. Thereupon the appellant brought out a gupti and killed her

husband. Her husband was taken to hospital where he died on

10.02.1999. She proved the signature of her father-in-law on the letter of

complaint which was treated as first information report.

Evidence of the aforesaid eye witnesses have been challenged by the

defence on various grounds. Referring to the cross-examination of P.W. 1,

it is contended she was in bed and had not seen the appellant hit her son

Swarup. With regard to P.W. 2, learned Counsel argues relationship

between the couple was strained and she admitted that she was living

separately from her matrimonial home prior to the incident. Hence, it is

absurd that P.W. 2 could have seen the incident on the fateful night.

I have given my anxious consideration to the challenge thrown to

the aforesaid eye witnesses. Though I find substance in the submission of

the defence with regard to the presence of P.W. 2 at the place of

occurrence, it is undisputed that P.W. 1 was in the residence when the

incident occurred. In her deposition, P.W. 1 categorically stated that she

was in the house with her husband and minor daughter. She saw the

incident of assault and tried to save her son. In the course of scuffle, she

snatched the shawl/chadar of the appellant. The cover of the gupti was

also snatched away from the appellant.

Referring to a stray sentence in her cross-examination, it is argued

P.W. 1 is not an eye witness. I am unable to accept such proposition.

Evidence of a witness is to be read as a whole. A stray or casual

observation cannot be culled out from the entire evidence and a contrary

inference be drawn therefrom. If the evidence of P.W. 1 is read as a whole,

I find the said witness was very much present in the house when the

incident occurred. She proved that the appellant had come to the house at

night and thereafter her son suffered injury. She also stated that she tried

to save her son and had snatched away the shawl/chadar from the

appellant. Thus, deposition of P.W. 1 clearly establishes that the appellant

had come to the house of the deceased and thereafter had attacked him

which had prompted P.W. 1 to intervene in the matter and snatch away

the shawl from the appellant. Stray observation that she did not find Sunil

hit her son has to be judged in the backdrop of the entire evidence on

record. Such observation would not alter the factual position that P.W. 1

was present at the place of occurrence and when the incident occurred

had tried to intervene and in the scuffle had snatched away the

shawl/chadar from the appellant. Furthermore, her evidence is

corroborated by other witnesses.

P.W. 3, Sankar Bhattacharjee is a neighbour who though declared

hostile admitted on hearing a noise, he came to the spot and found that

there was a scuffle and the appellant was lying with an injury on the floor.

P.W. 4, Arup Chakraboroty, brother of the deceased, though hostile,

also admitted that his younger brother had been murdered in his house

on the fateful day.

P.W. 5, Biswanath Das, brother-in-law of the deceased deposed he

came to the spot at 10 a.m. on the next day and heard from P.W. 1 that

her son had been murdered by the appellant.

These witnesses, therefore, corroborate the prosecution case that

the deceased had been murdered in the house on the fateful night. More

importantly, P.W. 5 stated mother of the deceased i.e. P.W. 1 narrated the

incident to him. Their depositions substantially corroborate the version of

P.W. 1 and establish that the victim was brutally attacked in his house in

the night of 08.02.1999 resulting in his death. Presence of P.W. 1 at the

place of occurrence is most natural and the fact that she disclosed the

name of the appellant as the assailant to P.W. 5 soon after the incident

(even prior to registration of F.I.R.) clearly corroborates her claim as an

eye witness to the incident. Medical evidence on record also corroborates

the ocular version of P.W. 1.

P.W. 7, Dr. Tapas Kumar Bose is the Post Mortem doctor who noted

the following injuries on the deceased.

"1) one stiched up surgical incised wound 9 ½" in length right para

medium 1" below tip of xiphoid to 5" above symphysis pubis on

opening the stitches abdominal parities and peritoneum seen

stiched in layers and peritoneal cavity deep, evidence of repair of

coins of small intestine and mesentery seen with fair amount of

blood stained fluid in peritoneal cavity.

2) one surgical incised drainage wound 1" in length with corrugaged

rubber drain attached left lower abdomen. On opening peritoneal

deep.

3) One surgical incised wound 1" in length with a corrugated rubber

drain attached 3" above right anterior, superior illispine. On

opening peritoneal cavity deep.

4) One incised penetrating wound 3 ¼" X ½"x abdominal cavity

right hypochondrium 1" below coastal urge 2 ½"to the right of mid

line. On desection and pressing the track it has seen to pass

through skin sub-cutaneous tissues muscles, vessels, and nerves,

and enter peritoneal cavity, margin clear cut angles acute, with

abrasion upward direction downward, backward and right to left."

He opined that death was due to the effect of injuries ante mortem in

nature. He proved the post mortem report (Exhibit 3). He stated that his

opinion was concurred by Professor R. Basu, the then Head of the

Department at N. R. S. Medical College and Hospital. He further opined

that injury No. 4 may be caused by a sharp cutting weapon with pointed

edges and used in a penetrative manner.

P.W. 8, Kush Chandra Roy is the Investigating Officer in this case.

He deposed that he had seized the brown shawl/chadar as well as the

cover of a gupti i.e. weapon of offence under a seizure list. He identified

the articles in Court.

Prosecution case as narrated by P.W. 1, therefore, not only receives

corroboration from the evidence of other witnesses but also from the

medical evidence and the contemporaneous seizure of the shawl and cover

of gupti which was used as weapon of offence. Evidence of the eye witness

P.W. 1 is, therefore, wholly reliable and receives corroboration, as

aforesaid.

In this backdrop, failure to prove the motive of crime or non-seizure

of weapon of offence does not affect the unfolding of the prosecution case

or its credibility. Thus, I am of the opinion the prosecution case is proved

beyond doubt.

Evidence on record does not show that the deceased was armed. On

the other hand, deposition of P.W. 1 and other circumstances clearly

establish the appellant had come to the house of the deceased with the

weapon hidden under a shawl/chadar. This discloses his intention to kill

the victim. My conclusion is further fortified by the severity of the blow

inflicted by the appellant in the abdomen resulting in extensive damage to

internal organs as per injury No. 4 noted in the post mortem report. It is

also relevant to note that the appellant had attacked the deceased without

provocation and the case does not appear to fall within any of exceptions

to Section 300 of the Indian Penal Code. However, for reasons best known

to the prosecution charge was framed under Section 304 of the Indian

Penal Code and the appellant has been convicted on such score.

Ordinarily, under these circumstances, this Court would be inclined to

issue a Rule calling upon the appellant to show cause why he should not

be convicted of the graver offence of murder, however, as the maximum

sentence of life imprisonment has been imposed upon him, I have chosen

not to resort to such course of action.

With the aforesaid observation, conviction and sentence of the

appellant is upheld.

The appeal is accordingly dismissed.

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. Parole of the appellant is cancelled and he is directed to

surrender within a fortnight from date before the trial Court and serve out

the sentence in accordance with law. In the event he fails to do,

appropriate processes be issued to the appellant and execute the sentence

in accordance with law.

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.

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




as/akd/PA (Sohel)