Sukumar Das vs State Of West Bengal
2022 Latest Caselaw 1484 Cal

Item No.24



                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. 678 of 2006
                                     With
                  CRAN 1 of 2008 (Old No. CRAN 1910 of 2008)

                                 Sukumar Das
                                     -Vs-
                            State of West Bengal

For the Appellant       :      Ms. Punam Basu, Advocate

Amicus Curiae           :      Mr. Sumanta Ganguly, Advocate

For the State           :      Mr. Saswata Gopal Muukherjee, Ld. P.P.
                               Ms. Amita Gaur, Advocate.

Heard on                :      25.03.2022

Judgment on             :      25.03.2022

Joymalya Bagchi, J. :-

        The appeal is directed against the judgment and order dated

18.06.2006

passed by learned Additional Sessions Judge, Kalna,

Burdwan, in Sessions Trial No. 19/2005 arising out of Sessions Case

No. 60/2004 convicting the appellant for commission of offence

punishable under Section 302 of the Indian Penal Code and sentencing

him to suffer rigorous imprisonment for life and to pay a fine of Rs.

5,000/-, in default to suffer simple imprisonment for six months more.

Prosecution case lodged against the appellant and co-accused

Shyam Roy is to the effect that on 01.08.2003 around 1 p.m., the

deceased Baidyanath Mondal along with others including Sukumar

Mallick, Pashupati Mallick, Mahadeb Mahato were working in the brinjal

field of Netai Mahato. Around 1 p.m., the deceased and others were

smoking bidi after having tiffin. Shyam Roy, a co-accused came to the

house of the deceased with a hasua. The appellant who was a next

neighbour of the deceased also came there. Shyam enquired about the

deceased and was told he was in the field of Netai Mahato. The

miscreants went there. Shyam Roy hander over a hasua to the appellant

who, out of previous grudge, hit the deceased on the neck with hasua.

As a result, the appellant died. On the written complaint of Chaina

Mondal, the wife of the deceased (P.W. 1), Purbasthali Police Station

Case No. 134 dated 01.08.2003 under Sections 302/120B/34 of the

Indian Penal Code was registered against the appellant and Shyam Roy.

In the course of investigation, the appellant was arrested and on his

showing the hasua was recovered from his cowshed. Co-accused was

also arrested and charge-sheet was filed. Charges were framed under

Section 302 and under Sections 120B/34 of the Indian Penal Code

against the appellant and co-accused Shyam Roy. The appellant pleaded

not guilty and claimed to be tried. Prosecution examined as many as 11

witnesses upon submitting a number of documents to prove its case.

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

and order dated 18.08.2006 convicted and sentenced the appellant, as

aforesaid. However, by the self-same judgment and order the co-accused

Shyam Roy was acquitted of the charges levelled against him. Hence, the

present appeal.

Ms. Punam Basu, appearing for the appellant submits the

evidence of so-called eye-witnesses P.W.s 1, 2, 3, 5 and 10 suffer from

various contradictions and inconsistencies. P.W.s 1 and 10 were in the

house and could not have seen the incident which occurred under the

'lichu' tree in the Brinjal field. P.W. 1 stated she had been called by her

daughter and came to the spot. Hence, she could not be an eye-witness.

P.W. 2 claimed he cried aloud and asked the daughter of the deceased to

come to the spot. This shows daughter of the deceased (P.W. 10) was not

present at the spot. There is variation in the deposition of P.W.s 2, 3 and

5 with regard to the manner in which the incident occurred. Post-

mortem doctor was not examined and no opinion was obtained from him

whether the seized hasua could cause the injuries noted in the post-

mortem report. Seizure of the seized hasua is also improbable and no

forensic report with regard to presence of blood stain was produced. She

prayed for acquittal.

Mr. Ganguly, Amicus Curiae, submits there is significant change

in the prosecution case in Court vis-à-vis narration in the First

Information Report. While in the First Information Report, place of

occurrence is stated to be the in front of a room, in Court, it was claimed

to have occurred under a lichu tree in the courtyard of the deceased.

Investigating Officer (P.W. 11) marked the courtyard of the house of the

deceased as P.O. and inquest of the dead body was also held in the

courtyard. Recovery of hasua is doubtful. None of the independent

witnesses stated hasua had been recovered on the showing of the

appellant. It is also argued P.Ws. 2, 3 and 5 were not examined by police

and stated about the incident for the first time in court. Hence, the

prosecution case is not proved and the appeal may be allowed.

On the other, Ms. Gaur, appearing for the State submits there is

no change in the place of occurrence. While P.W. 10 daughter of the

deceased described the incident have occurred while the victim was

sitting under a 'lichu' tree in the courtyard of the deceased. P.W. 1 stated

that the deceased had gone to work in the Brinjal field of Netai Mahato

(P.W. 2) which is 20 cubits away from their house. Sketch map prepared

by the Investigating Officer (P.W. 11) shows that the courtyard of

Baidyanath and the Brinjal field of P.W. 2 are contiguous to one another.

Evidence of independent witnesses P.Ws. 2 to 5 clearly establish the

prosecution case against the appellant which is supported by the

injuries noted in the P.M. report. Hence, the appeal is liable to be

dismissed.

P.W. 1 (Chaina Mondal) is the informant and the wife of the

deceased. She deposed on the day of the incident her husband was

working in the Brinjal field of Netai Mahato(P.W. 2) with Mahadeb

Mahato (P.W. 3), Pasupati Mallick (P.W. 5) and Sukumar Mallick (P.W.

6). Around 1 p.m. they were sitting under a tree in the land belonged to

Netai Mahato which is 20 cubits away from her house. Accused Shyam

came to her house with hasua and enquired about her husband. Her

daughter disclosed his whereabouts. Thereafter, Shyam went to the

place where her husband was sitting. Sukumar also came to the spot.

Sukumar took the Hasua from Shyam and struck a blow on the left neck

of her husband. He sustained injury. Subsequently, the witness claimed

she had gone to the spot with jackfruit to her husband and returned

home. Upon hearing the cries of her daughter, she came to the spot and

found her husband in injured condition. On a wholesome appreciation of

the entire evidence of the witness it appears that she is a post

occurrence witness. I am further, inclined to come to such conclusion as

in the First Information Report lodged by her, she had not claimed to

have seen the incident.

However, from the evidence of P.W. 1 it appears appellant was

working in the Brinjal field of Netai Mahato (P.W. 2) along with Mahadeb

Mahato (P.W. 3), Pasupati Mallick (P.W. 5) and Sukumar Mallick(P.W.6).

At the time of the incident all of them were sitting under a 'lichu' tree.

Thus, from her deposition presence of Netai Mahato (P.W. 2), Mahadeb

Mahato (P.W. 3), Pasupati Mallick (P.W. 5) and Sukumar Mallick (P.W. 6)

at the place of occurrence is established.

P.W. 2 (Netai Mahato) deposed the deceased along with others were

spraying pesticides on the land which had been taken on lease by him.

At the time of occurrence he along with the deceased Baidyanath,

Mahadeb Mahato (P.W. 3), Pasupati Mallick (P.W. 5) and Sukumar

Mallick (P.W. 6) were sitting under a 'Lichu' tree. Appellant came to the

spot and struck Baidyanath on the neck with a hasua. He cried out

loudly and called the daughter of Baidyanath to come to the place. They

arranged to move Baidyanath but he died at the spot. Police came to the

spot. He was a signatory to the inquest report. Deposition of Netai

Mahato (P.W. 2) is corroborated by Mahadeb Mahato (P.W. 3) as well as

Pasupati Mallick (P.W. 5). P.W.5 (Pasupati Mallick) is also a signatory to

the inquest report.

P.W. 6 (Sukumar Mallick) however claimed that he had left the

spot immediately prior to the incident and was a post occurrence

witness. He was a signatory to the seizure of blood-stained earth and

control earth at the place of occurrence by the police.

Aforesaid witnesses in unison have described the manner and

circumstances in which the deceased was assaulted by the appellant.

Their deposition is also corroborated by P.W.10 daughter of the

deceased. She stated that the incident occurred in the courtyard.

Appellant had cut the left side of the neck of her father. There was

dispute between the appellant and her father as the latter had objected

to the business of illicit liquor conducted by the appellant. P.W. 10

(Shyamali Mondal) is also a signatory to the inquest report. Mr. Ganguly

submits P.Ws. 2, 3 and 5 were not examined by police and stated the

aforesaid facts deposed for the first time in Court. P.W. 10 is not an eye

witness as she was called to the spot by P.W. 2 after the incident.

Presence of P.Ws. 2, 3 and 5 at the place of occurrence is most natural

and proved by other materials on record. P.W. 2 was the owner of the

land where the appellant and others were working as day labourers on

the relevant day were sitting under a 'Lichu' tree and smoking. At that

juncture appellant came to the spot and out of grudge assaulted the

victim with hasua on the neck. In fact, the appellant has also admitted

the presence of the aforesaid witnesses at the place of occurrence during

his examination under Section 313 Cr.P.C.

In this backdrop, failure to examine these witnesses by the

investigating officer P.W. 11 during investigation is a remissness in

investigation but does not improbabilise their presence at the place of

occurrence. These witnesses are not related to the deceased. They do not

have any inimical relationship with the appellant. Hence, I am of the

opinion their consistent version with regard to the assault on the

deceased is truthful, convincing and inspires confidence. Hence, I have

no reason to discard their depositions.

With regard to the place of occurrence, I am of the agreement with

the submission of the learned Counsel for the State that the incident

occurred under a 'Lichu' tree which is situated in the courtyard of

Baidyanath adjoining the Brinjal field of P.W. 2. P.W. 11 prepared rough

sketch map wherefrom it appears that the land of P.W. 2 and the

courtyard of the appellant are contiguous to one another. P.W. 1 also

stated that the Brinjal field of P.W. 2 is beside their house around 20

cubits away. It is true the 'lichu' tree has not been marked in the rough

sketch map prepared by investigating officer. However, its presence has

been consistently narrated by all the eye witnesses to the incident.

Though P.W. 1 stated that the 'Lichu' tree is in the land of P.W. 2 while

P.Ws. 3 and 10 claimed it was in the courtyard of the deceased, I am of

the opinion as both the sites are adjacent to one another and the

incident occurred under a tree in the courtyard which is adjoining the

field, the witnesses describe the place of occurrence in the manner, as

aforesaid. Moreover, the body of the deceased was recovered from his

courtyard and blood-stained earth has also been seized from the P.O. in

the presence of independent witnesses namely, P.Ws. 6 and 8. Therefore,

in view of the aforesaid evidence on record and the contiguity of two

sites, I am of the opinion that there is no shift in the place of occurrence.

I am not impressed by the submission of Ms. Punam Basu,

learned Advocate appearing for the appellant with regard to the alleged

discrepancies in the evidence of the eye-witnesses. P.W. 1 has stated the

incident occurred under a lichu tree which is 20 cubits away from her

house. The place of occurrence is visible from the house. At 1 p.m. she

had gone to give lunch to her husband, Baidyanath. Thereafter, she

returned home and saw the incident. Her daughter raised alarm and told

her to go to the spot. From the tenor of her deposition it is clear both the

mother and daughter could see the incident from their house and upon

seeing assault on Baidyanath they rushed to the spot. Thus, their

deposition as eye-witnesses cannot be discounted by referring to stray

sentences out of context. Furthermore, presence of P.W.s 2, 3 and 5 have

been admitted by the appellant during his examination under section

313 Cr.P.C. From their depositions it is clear they were present with the

deceased when the appellant came to the spot and assaulted him on the

head. There may be slight variation in the manner in which each of the

witnesses deposed with regard to the incident. Human beings have

varying capacities of recollection and reproduction. There are bound to

be some differences in the manner in which each of the witnesses would

narrate the incident. However, no gross contradiction and inconsistency

could be pointed out in the deposition of P.W.s 2, 3 and 5 so as to render

the prosecution case improbable.

The Post Mortem doctor was not examined but P.M. report had

been exhibited on consent under Section 294 Cr.P.C. as Exhibit-11.

From the report I find that the deceased suffered deep incised gaping

wound over the back of the neck starting from right border of vertebral

column extending obliquely to the left upto larynx, length 6" X depth 2" x

width 2" cutting vertibrae (C5), tissues and great vessels with presence of

blood clots and extravasation of blood in tissue.

The aforesaid injury noted in the post-mortem report is admissible

in law1 and corroborates the ocular version of the witnesses particularly

P.Ws. 2, 3 and 5 herein.

It is contended seizure of the hasua is doubtful. From the arrest

memo it appears appellant was arrested around 18.15 hours and the

hasua was seized on the strength of his leading statement at 18.25

hours. This appears to be patently impossible. I have gone through the

evidence of P.W. 11 who stated after receiving the FIR investigation of the

Himanshu Mistri Vs. State of West Bengal (2002) C Cr LR (Cal) 805

case was entrusted to him. He proceeded to the spot and arrested the

appellant from a jungle near his house. He recorded his confessional

statement and on the strength of the leading statement hasua was

recovered from a cowshed. Recovery was witnessed by independent

witnesses, namely, P.W.s 2 and 5. From the deposition of P.W. 11 it

appears that the arrest of the appellant near his house and recovery of

the hasua from his cowshed pursuant to his leading statement was in

the course of the same transaction. Seizure was witnessed by

independent persons, namely, P.W. 2 and 5. However, it is true FSL

report with regard to blood stain on the hasua was not produced in

Court and as post-mortem doctor had died, he could not be shown the

seized weapon. His opinion could not have been obtained during trial

whether injuries could have been caused by the seized weapon. However,

nature of injuries noted in the post-mortem report is an incised wound

on the neck and does not militate against the seizure of hasua, that is,

weapon of offence which is a sharp cutting one.

In the light of the consistent evidence of the eye witnesses which is

corroborated by medical evidence and other circumstances, I am of the

opinion prosecution has been able to prove its case beyond reasonable

doubt. Conviction and sentence of the appellant is upheld.

Accordingly, appeal and connected application are disposed of.

Bail Bond of the appellant is cancelled and he is directed to

forthwith surrender and serve out the remainder of the sentence, failing

which the trial Court shall issue appropriate process to execute the

sentence in accordance with law.

Period of detention suffered by the appellant during investigation,

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

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

Procedure.

I note the appellant has suffered incarceration for more than 14

years. He does not appear to have criminal antecedents and had dealt a

single blow on the deceased. In the event, upon being taken into custody

the appellant makes an application for premature release under Section

433A Cr.P.C., the appropriate authority shall consider such application

in the light of the aforesaid facts and other relevant factors including his

conduct in the Correctional Home.

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

be sent down to the trial court immediately for necessary action and

execution of the sentence.

I agree.

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




KOLE/PA (Sohel)