Calcutta High Court (Appellete Side)

Raju Majhi vs State Of West Bengal on 19 July, 2022

Sl. No. 39




                  IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL APPELLATE JURISDICTION
                            APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                   And
The Hon'ble Justice Ananya Bandyopadhyay

                               C.R.A. 390 of 2017
                                      with
                                CRAN 1 of 2021

                                    Raju Majhi
                                        -Vs-
                               State of West Bengal


For the Appellant               : Mr. Sabir Ahmed, Adv.
                                  Mr. Bhaskar Hutait, Adv.
                                  Mr. Mujibar Ali Naskar, Adv.
                                  Mr. Apan Saha, Adv.

For the State                   : Mr. Saswata Gopal Mukherjee, learned P.P.
                                  Mr. Partha Pratim Das, Adv.
                                  Mrs. Manasi Roy, Adv.

Heard on                        : 19th July, 2022

Judgment on                     : 19th July, 2022.


Joymalya Bagchi, J. :-

         With consent of the parties appeal is taken up for hearing.

         Appellant has assailed judgment and order dated 4 th May, 2017

and 5th May, 2017, passed by the learned Additional Sessions Judge,

Kalna, Burdwan in Sessions Case No. 04 of 2014 arising out of

Sessions Trial No. 15 of 2014 convicting the appellant for commission

of offence punishable under Section 304 Part I of the Indian Penal Code
                                     2


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 there was dispute between the appellant and the aunt of the

appellant herein defacto complainant viz. Smt. Swarna Majhi, and her

two sons over enjoyment of joint property. On 19.03.2011 at about 2.30

P.M. an altercation broke out between Nityananda (son of the defacto

complainant) and the mother and wife of the appellant, namely,

Kalpana and Hema drying over cow-dung clods on the wall of the

appellant.   In the course of the dispute, the appellant brought out a

henso from his house and assaulted Nityananda. As a result,

Nityananda @ Nonte suffered injuries. He was taken to Madhurpur

Primary Health Centre where doctors declared him as dead.

        Swarna Majhi lodged written complaint at the police station

resulting in registration of Kalna Police Station Case No. 76 of 2011

under Sections 304/34 of the Indian Penal Code against the appellant

and Kalpana Majhi and Hema Majhi, mother and wife of the appellant

respectively. In conclusion of investigation charge-sheet was filed

against the aforesaid accused persons and charge was framed against

them under Sections 304/34 of the Indian Penal Code. They pleaded

not guilty and claimed to be tried. In the course of trial, prosecution

examined 9 witnesses to prove its case. Defence of the appellant was
                                      3


one of innocence and false implication. In conclusion of trial, learned

trial Judge by the impugned judgment and order convicted and

sentenced the appellant, as aforesaid. However, Kalpana Majhi and

Hema Majhi were acquitted of the charge levelled against them.

       Mr. Ahmed, learned Counsel for the appellant submits that the

incident occurred in the house of the appellant. Swarna Majhi and her

two sons were the aggressors. Appellant tried to resist them and the

ingredients of offence punishable under Sections 304 Part I of the

Indian Penal Code are not disclosed. Weapon of offence was not

recovered. Hence, he prayed for acquittal.

      On the other hand, Mr. Das, learned Counsel for the State

submits that the eye-witnesses viz. P.W. 1, Swarna Majhi, P.W. 2, Kanai

Majhi and P.W 4, Manik Majhi unequivocally stated that the appellant

had struck Nityananda with a henso on his chest. As a result, he died.

Their ocular version is corroborated by post-mortem doctor, P.W. 7.

Hence, conviction of the appellant does not call for interference.

      I have gone through the evidence on record in the light of the

aforesaid submissions.

      P.W. 1, P.W. 2 and P.W 4 are the eye-witnesses.

      P.W. 1 (Swarna Majhi) stated that after death of her husband,

Ram Majhi, she had left her matrimonial home and was residing at her

father's house with her two minor sons.         After her sons attained

majority, she returned to her matrimonial home with her sons and
                                     4


demanded her share in the property which was denied by the appellant.

On 19.03.2011 at about 2.30 P.M. there was an altercation between

Nityananda @ Nonte on the one hand and the accuseds Kalpana Majhi

and Hema Majhi on the other hand. At that juncture, appellant came

with a henso and assaulted Nityananda @ Nonte. Nityananda @ Nonte

suffered injuries and fell down on earth. He was taken to the hospital

where he was declared dead.

      P.W. 2 (Kanai Majhi) and P.W 4 )Manik Majhi) are common

relations of both the parties.   They were present at the spot.      They

corroborated the evidence of P.W. 1.

      P.W. 3 (Tarak Majhi) is a reported witness.        He went to the

hospital and saw the dead body of the Nityananda @ Nonte.

      P.W. 6 (Indranil Basu) is the scribe of the First Information Report

which was marked as Ext.-4.

      P.W. 5 (Nirmal Kumar Sarkar) ASI of Police, held inquest over the

dead body of the deceased.

      P.W. 7 (Abhirup Mondal) is the medical officer who conducted

post-mortem examination over the body of the victim. He found the

following injuries:

      "1. One incised penetrating wound measuring about 2cm. to 1 cm.
      placed obliquely 4 cm. below left nipple.

      2. Fifth rib fracture along with wound.

      3. Heart punctured 2cm. long and blood was found in between
         mediastinlun.
                                          5


      4. One incised wound exposing underline muscle measuring about
         7 cm. in middle part of index finger over anterio medial aspect of
         left forearm.


      5. Two sharp cut injuries in between right index and thumb - one
         at the base of right index finger, measuring about 3 cm. long
         (elliptical)."

      P.W    9   (Parimal   Sarkar),         S.I.   of   police,    commenced   the

investigation which was concluded by P.W. 8 (Sridam Garai), who

submitted police report.

      From the evidence of the witnesses it appears that there was a

dispute over property between Swarna Majhi and her two sons on the

one hand and the appellant on the other hand.                      On 19.03.2011 at

2.30P.M. over the issue of drying cow-dung clods on the wall of the

appellant, an altercation broke out between Nityananda @ Nonte and

Kalpana Majhi and Hema Majhi viz. mother and wife of the appellant.

Appellant came to the spot with a henso and assaulted Nityananda @

Nonte. Aforesaid facts have been proved by the eye-witnesses viz. P.Ws.

1, 2 and 4. They were present there and witnessed the incident. I have

no reason to disbelieve their version. Moreover, ocular version of eye-

witnesses is corroborated by the post-mortem doctor, P.W. 7. He found

incised penetrating wound on the chest. He also found other defensive

injuries on the fingers of the victim.

      In the light of the aforesaid evidence on record conviction of the

appellant recorded under Section 304 Part-I of the Indian Penal Code

does not call for interference.
                                     6


      Coming to the issue of sentence, I note that the learned trial

Judge had imposed maximum sentence of life imprisonment upon the

appellant. Facts

of the case show there was a civil dispute over share in

the property between the parties. P.W. 1, Swarna Majhi and her son,

Nityananda @ Nonte were drying cow-dung clods on the wall of the

appellant. This resulted in a sudden quarrel which prompted the

appellant to strike the deceased on his chest. Though the appellant had

struck the deceased on a vital part of the body with a henso it must be

borne in mind that he had acted without premeditation in the course of

a sudden quarrel and on the spur of the moment. Incident occurred

out of a property dispute and appellant does not have criminal

antecedent.

Balancing the aggravating and mitigating factors, I am inclined to

modify the sentence imposed on the appellant and I direct that the