Esrafil Sk vs State Of West Bengal
2022 Latest Caselaw 1528 Cal

Item No. 37



                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. 565 of 2012
                                   with
                               CRAN 3 of 2021

                                  Esrafil Sk.
                                     -Vs-
                             State of West Bengal



For the Appellant       :     Md. Ashraf Ali, Adv.
                              Mr. Rafikul Islam Sardar, Adv.
                              Ms. Sabnam Laskar, Adv.


For the State           :     Mr. Partha Pratim Das, Adv.
                              Ms. Trina Mitra, Adv.

Heard on                :     28.03.2022

Judgment on             :     28.03.2022


Joymalya Bagchi, J. :-

         The appeal is directed against judgment and order dated

21.07.2012

and 23.07.2012 passed by the learned Additional Sessions

Judge, 2nd Court, Murshidabad at Berhampore, in Sessions Trial No. 2

of May, 2011 arising out of Sessions Serial No. 128 of 2011 convicting the

appellant for commission of offence punishable under Section 302 of the

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

pay a fine of Rs. 2000/-, in default to suffer rigorous imprisonment for

two years more.

Prosecution case as alleged against the appellant is to the effect

that a dispute broke out between the appellant and one Hannan Sk. (P.W.

1) over the issue that the appellant was transporting jute in a bullock cart

and damaging the crop in the land of the said Hannan Sk. On the same

day, in the evening, around 6:00 p.m. after Iftar there was exchange of

words between Hannan Sk. and the appellant over selfsame issue. The

appellant, Esrafil, hit Hannan Sk. with brick bats and caused bleeding

injury. Hannan Sk. raised hue and cry. Hearing his cries Saidul, younger

brother of Hannan Sk., rushed to the spot and protested. Appellant

rushed to his house, brought out a hasua and assaulted Saidul. As a

result Saidul suffered bleeding injury and fell on the ground. He was

taken to Berhampore Hospital where he was declared dead. Hannan Sk.

was treated at Barhan Rural Medical Center. Written complaint was

lodged by Hannan Sk. resulting in registration of Hariharpara Police

Station Case No. 393 of 2010 dated 21.08.2010 under Sections

325/326/302 of the Indian Penal Code. In the course of investigation,

the appellant was arrested and on the showing of the appellant hasua was

recovered. Charge-sheet was filed against the appellant and charge was

framed under Section 302 of the Indian Penal Code. In the course of trial,

prosecution examined thirteen witnesses and exhibited a number of

documents. In conclusion of trial, learned trial Judge by impugned

judgment and order dated 21.07.2012 and 23.07.2012 convicted and

sentenced the appellant, as aforesaid.

Mr. Ali, learned Counsel appearing on behalf of the appellant

argues genesis of the prosecution case has not been proved. Incident

commenced upon exchange of hot words between P.W. 1 and the

appellant. Appellant assaulted P.W. 1 with brick bats. Medical report with

regard to injury of P.W. 1 has not been proved. P.Ws. 1 and 4 had been

implicated in a criminal case for looting of articles from the house of Atar

Ali, father of the appellant. Hence, out of animosity appellant has been

falsely implicated in the instant case. Without prejudice to the aforesaid

submissions, learned Counsel argues that the appellant did not have

intention to murder to the victim. Incident occurred due to sudden and

grave provocation by P.W. 1, Hannan Sk., and the offence may be

converted from murder to culpable homicide not amounting to murder.

Mr. Das, learned Counsel appearing for the State submits evidence

of the prosecution witnesses particularly P.Ws. 1, 2, 3, 4, 5 and 6

unequivocally stated appellant had initially assaulted P.W. 1 with brick

bats. When Saidul protested, appellant went to his house and brought out

a hasua. Thereafter he assaulted Saidul on the chest with the hasua

resulting in his death. Post mortem doctor supports the ocular version of

the eye-witnesses. Hence, prosecution case is proved beyond doubt.

P.W. 1, Hannan Sk. is the defacto complainant and eyewitness to

the incident. He deposed appellant transported harvested jute in a bullock

cart through his land damaging crops. On 21st August, 2010 at 6:00 p.m.

he asked the appellant why he had damaged crops. Being questioned,

appellant threw brick bats at P.W. 1 causing injury. P.W. 1 raised hue

and cry. Hearing his cries, Saidul, his younger brother, came to the spot.

Appellant ran towards his house and brought a hasua from the house.

Thereafter he gave hasua blow on Saidul. Saidul fell on the ground. Local

people also assembled at the spot. Appellant fled away from the spot.

Saidul was taken to Barhampore hospital. P.W. 1 was treated at Barhan

Rural Medical Center. He lodged written complaint. In cross-examination,

he gave vivid description with regard to the topography of the cultivated

lands in the village. He denied the suggestion that he and Rahesan Ali

(P.W. 4) had been implicated in a criminal case by Atar Ali, father of the

appellant.

P.W. 1, Hannan Sk. is corroborated by P.W. 2, Nasrat Ali, P.W.3,

Monirul Islam, P.W 4, Rehesan Ali, P.W. 5, Saiful Sk. and P.W. 6, Maidul

Sk. All these witnesses, in unison, stated initially there was dispute

between Hannan and the appellant. Appellant threw brick bats at Hannan

and he suffered injuries. When he raised hue and cry, Saidul came to the

spot and asked the appellant why he had assaulted Hannan. Thereupon,

the appellant rushed to his residence, brought out a hasua and assaulted

Saidul. As a result Saidul died.

P.W. 12, Dr. Purba Roy, held postmortem over the dead body of

the Saidul and found the following injuries:

"1. Rigor Mortis was present all over the body.

2. Lacerated injury over left wrist measuring 5" with underlying tendon injury.

3. Lacerated injury on right arm-pit.

4. 2½" linear incised wound with clear cut margin over medial side of left nipple. The wound extended upto the heart with decreasing breadth.

5. Internal injury.

There was a penetrating injury in the heart. Thorax was full of blood."

He further opined:-

" Cause of death haemorrhagic and neurogenic shock due to the above mentioned injuries which was ante mortem. The cause of death is consistent with homicidal injury."

From the aforesaid evidence on record it appears Saidul had been

assaulted with a hasua on the chest by the appellant. As a result suffered

incised wound on the chest which penetrated his heart and died. Under

these circumstances, failure to place on record the injury report of

Hannan Sk. (P.W.1) does not affect the unfolding of the prosecution case.

Ample evidence of eye-witnesses namely P.Ws. 3, 4, 5 and 6 show they

had seen the bleeding injury on the head of Hannan Sk. Hence, genesis of

the prosecution case which led to the appellant assaulting Saidul

resulting in his death has been proved. With regard to enmity between

P.W. 1 and his family members with the appellant, I note the suggestion

given to P.W. 1 that he and P.W. 4 were implicated in a criminal case by

Atar Ali, father of the appellant, has been denied. That apart, eye-

witnesses namely P.Ws. 2, 4 and 6 are independent neighbouring

witnesses and cannot said to have any animosity against the appellant.

Thus, I am of the opinion there is sufficient independent evidence on

record to corroborate P.W. 1 and prove that the appellant had assaulted

Saidul on the chest with a hasua resulting in his death.

In the alternative, it is argued that the appellant had committed

the act due to sudden and grave provocation by P.W. 1. He did not intend

to murder Saidul. Hence, conviction of the appellant may be altered from

murder to culpable homicide not amounting to murder. Evidence on

record shows P.W. 1 had accused the appellant of damaging his crop by

transporting jute in a bullock card over his land. Being enraged by such

accusation, appellant threw brick bats at P.W. 1 and injured him. When

his younger brother Saidul intervened he went to his house and brought

out a hasua. Then, he assaulted Saidul on the chest with the hasua

resulting in severe injury and death. Had the appellant in the course of

his quarrel with P.W. 1 acted instantaneously and assaulted Saidul with

brick bats as he had done to P.W. 1 the situation would have been

otherwise. On the contrary, he went to his residence and brought out a

more dangerous weapon namely hasua and killed Saidul. This shows

preparation on the part of the appellant in arming himself with a weapon

in order to assault the victim.

Mr. Ali submits the appellant did not act in a cruel manner and

dealt a single blow.

Number of blows by itself is not a determining factor with regard

to the culpability of an accused. Manner of weapon used, situs of injury

and severity and gravity of the damage caused by the assault are equally

relevant to come to a conclusion whether the accused intended to commit

murder. In the present case, appellant had gone to his house and fetched

a dangerous weapon namely hasua exposing his intention to murder. He

assaulted the victim on the chest, a vital part of the body. Nature of the

assault was so severe that it not only caused an incised wound on the

chest but punctured the heart too. These circumstances leave no doubt in

my mind that the appellant had not merely acted in heat of passion in the

course of a sudden quarrel but in retaliation to the exchange of words

between himself and P.W. 1, he went back to his house, armed himself

with a hasua and committed the murder. Thus, the case does not, in my

estimation, fall within the ameliorative zones of either exception 1 or

exception 4 of section 300 IPC.

In the light of the aforesaid discussion, I uphold the conviction and

sentence of the appellant.

Appeal is accordingly dismissed. Connected applications, if any,

also stand disposed of.

Before parting, I note that the incident occurred due to dispute

over cultivation. Appellant has no criminal antecedent. In the event the

appellant upon completion of 14 years of actual imprisonment makes an

application for remission of sentence before the appropriate authority in

terms of section 433A Cr.P.C, the said authority shall consider his prayer

in the light of the aforesaid circumstances and other relevant factors

including his conduct in the correctional home.

The period of detention suffered by appellant during investigation,

enquiry or trial shall be set off under Section 428 of the Code of Criminal

Procedure.

Copy of the judgment along with LCR be sent down to the trial

Court at once for necessary compliance.

Urgent Photostat Certified copy of this order, if applied for, be

supplied expeditiously after complying with all necessary legal formalities.

I agree.

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




tkm /sdas/PA (Sohel)