Anil Mondal vs The State Of West Bengal
2022 Latest Caselaw 1292 Cal

                    IN THE HIGH COURT AT CALCUTTA

                        Criminal Appellate Jurisdiction
                                (Appellate Side)



 Before:

 The Hon'ble Mr. Justice Ananda Kumar Mukherjee

                               C.R.A. 316 of 2006

                               Anil Mondal
                                     Vs.
                           The State of West Bengal

 For the Appellant: None



 For the State: Mr. Narayan Prasad Agarwala,
                Mr. Pratick Bose



 Heard on                  :              17.03.2022



 Judgement delivered on:                   17.03.2022




 Ananda Kumar Mukherjee, J. :-

1.         This appeal has been filed by the convict/appellant under Section 374

(2) of the Code of Criminal Procedure, 1973, assailing the judgment and order of

conviction and sentence dated 20.03.2006 and 21.03.2006 respectively passed by

the learned Sessions Judge, Dakshin Dinajpur at Balurghat in Sessions Case No.

125/2005 (Session Trial Case No 35/2005), whereby the appellant was convicted
                                         2



for the offence under Section 326 of the Indian Penal Code and sentenced to

suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in

default to suffer rigorous imprisonment for two years.

2.     After the matter was listed before this Bench, administrative notices were

issued to the appellant and respondent. Notice was served duly upon the

appellant at his residence at Bijpukur in Harirampur Police Station, Dakshin

Dinajpur but the appellant did not appear.

3. Learned advocates for the State are present. L.C.R. has been received.

Perused the memorandum of appeal, the impugned judgment and order

passed by the learned Sessions Judge, Dakshin Dinajpur dated 20.03.2006 and

21.03.2006.

4. Paper Book has also been prepared. Since the appellant is unrepresented,

the appeal is taken up for consideration and disposal as per the provision of

Section 386 of the Code of Criminal Procedure.

5. Before embarking upon the grounds of appeal raised by the appellant, it

would be necessary to have a synoptical resume of the case, which has given rise

to this appeal.

6. Precisely the fact of the case is that on 17.11.2004 Dharmu Mondal lodged

a written complaint before the Officer-in-Charge, Harirampur Police Station

alleging that on 15.11.2004 at about 1 a.m. at night, accused Anil Mondal called

Kali Mondal, the son of the de facto complainant from his house and started an

altercation with him. At that time, accused Anil Mondal, appellant herein,

assaulted Kali Mondal on his belly with a sharp cutting knife (chaku) causing cut

injury in his intestine. Kali raised hue and cry, which attracted the villagers, and

the accused fled away. The injured person was taken to Itahar Hospital for his

medical treatment. Subsequently, he was transferred to Raiganj Sadar Hospital,

where he remained admitted in a serious condition. On the basis of the

complaint, Harirampur P.S. Case No. 47 of 2004 dated 17.11.2004 was registered

under Section 326 of the Indian Penal Code. After completion of investigation,

police submitted a charge sheet against the accused/appellant on 31.12.2004

under Section 326/307 of the Indian Penal Code.

7. Subsequently the victim Kali Mondal expired on 04.01.2005 and the

Investigating Officer submitted a supplementary charge sheet on 7.4.2005 under

Section 302 of the IPC. The case was committed to the Court of Sessions and

charge was framed against the accused/appellant under Section 302 of the IPC

for causing death to Kali Mondal. Prosecution examined Dharma Mondal, the

defacto-complainant as P.W. 1, Achintya Mondal as P.W. 2, Sitesh Mondal as

P.W. 3, Tilok Mondal as P.W. 4, Sudharani Mondal as P.W. 5, Gunodhar Mondal

as P.W. 6, S.I. Kazi Sarwar Parvez as P.W. 7, Khagendra Nath Mondal as P.W. 8,

Ramendra Nath Mondal as P.W. 9 and Dr. Prabir Kumar Basak as P.W. 10. FIR

has been marked as Exbt. 2. Endorsement of Receipt of the complaint as Exbt. 1,

rough sketch map of P.O. with index as Exbt. 3, Seizure List of weapon of assault

as Exbt. 4, Inquest report as Exbt. 5 and Post Mortem Report as Exbt. 6. Medical

Papers as Exbt. 7 series. Alamat relating to weapon of assault has been produced

as Mat Exbt. I. Accused pleaded his innocence at the time of his examination

under section 313 of Cr. P.C. No Defence witness has been examined.

8. Having assessed the evidence on record and the opinion of the doctor,

learned Sessions Judge took into consideration the fact that the injured person

was admitted in the hospital on 16.11.2004 and was discharged from the hospital

on 9.12.2004 after an operation which was necessary on account of the injury

caused by the accused. Subsequently, the victim Kali Mondal expired on

5.1.2005 due to Septicemia which was anti mortem in nature following an

abdominal operation due to a stab injury. On the basis of such evidence

adduced, learned Sessions Judge despite framing a charge under Section 302 of

the IPC, found the accused guilty of a lesser offence under Section 326 of the IPC

and invoking Section 222 (2) of the Cr. P.C. sentenced him to suffer rigorous

imprisonment for 7 years with a fine of Rs.5,000/-, in default, rigorous

imprisonment for further two years.

9. Learned advocate for the State argued that the judgment passed by

learned Sessions Judge is consistent with the evidence on record and there is no

doubt of the fact that the appellant is guilty for causing stab injury to the victim

which in course of time resulted in his death. Learned advocate for the State

could not give any satisfactory explanation as to why an offence which resulted

in death of a person had to be reduced to a lesser offence under Section 326 of

the IPC. In this matter, the State has not preferred any appeal against the

judgment of conviction and sentence.

10. I have carefully considered the evidence on record, the documents

produced by prosecution and the impugned judgment. Heard learned advocate

for the respondent state.

11. Achinta Mondal, P.W. 2 appears to be an eyewitness of the occurrence

and he was present on 15.11.2004 at 1 p.m. when there was a scuffle between the

victim Kali and the accused person. He stated that suddenly the accused

stabbed Kali with a knife. At the relevant time other people rushed to the place

and the victim was taken to Itahar Hospital for his treatment. P.W. 1 also

deposed that on that night accused, Anil Mondal called his son Kali Mondal and

in the courtyard of their house an altercation started between the two when Anil

Mondal stabbed Kali with knife on his belly. Other people came there and Kali

narrated the incident to P.W.1 and others. P.W. 3 deposed that on that night on

hearing hue and cry he rushed to the P.O. and found Kali was lying with

bleeding injury. From there he was taken to Itahar Hospital and then to Raiganj

Hospital. The witness further deposed that the victim was admitted at the

hospital for 20 to 22 days and after his discharge he died at his house after seven

to ten days.

12. From the evidence of the aforesaid witnesses it clearly transpires that the

victim was assaulted by the appellant with a knife causing injury in his

abdomen. The victim received medical treatment and died after 20 to 22 days.

The doctor who held the post-mortem examination opined that the death was

caused due to septicaemia which developed after the victim underwent

operation in his abdomen, related to faulty post operational care.

13. Considering all these aspects, Learned Sessions Judge found that the

proximate cause of death of the victim was not the stab injuries but due to

subsequent developments of septicaemia. If adequate post operational medical

care was taken the victim could have servived saved but unfortunately the

victim succumbed due to some intervening circumstances, which were

avoidable in nature.

14. Having considered the evidence on record and the reasoning of the

Learned Sessions Judge for arriving at such a decision, I am of the view that

there is nothing to interfere the judgment of conviction and sentence passed by

Learned Sessions Judge.

15. Accordingly, the appeal is without merit and the same is dismissed on

the basis of the materials in record. The judgment and sentence passed by the

Learned Sessions Judge is affirmed.

16. Interim order of stay, if any, stands vacated. Let a copy of this of

judgment alongwith the L.C.R. be sent to the Court of Learned Sessions Judge,

Dakshin Dinajpur, Balurghat for information and for executing the sentence, if

the same has remained unexecuted in any manner.

17. Urgent Photostat certified copies of this order be supplied to the parties,

if applied for, on fulfilling necessary conditions.

(Ananda Kumar Mukherjee, J.)

A.K.G./S.D./K.S.