Rajdulal Sarkar vs State Of West Bengal
2022 Latest Caselaw 945 Cal

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. 200 of 2005 With CRAN 2 of 2019(Old CRAN 1861 of 2019) Rajdulal Sarkar

-Vs-

                           State of West Bengal


For the Appellant      :     Md. Phiroze Edulji, Adv.
                             Mr. Somnath Banerjee, Adv.
                             Mr. Saryati Dutta, Adv.
                             Mr. Pinaki Ranjan Bhattacharya, Adv.
                             Ms. A. Chatterjee, Adv.
                             Ms. Samima Crewal, Adv.

For the State     :          Ms. Amita Gaur, Adv.

Heard on          :          02.03.2022

Judgment on       :          02.03.2022


Joymalya Bagchi, J. :-

Appeal is directed against judgment and order dated 24th

February, 2005 and 25th February, 2005 passed by the learned

Additional Sessions Judge, Fast Tack-III, Nadia, Krishnagar in sessions

Trial No. V. Sept., 2004 in Sessions case No. 84(8) 2004 convicting the

appellant for commission of offence punishable under Section 448/326

of the Indian Penal Code and sentencing him to suffer rigorous

imprisonment for ten years and to pay fine of Rs. 5,000/-, in default to

suffer rigorous imprisonment for one year more for the offence under

Section 326 of Indian Penal Code. No separate sentence was awarded in

respect of the offence punishable under Section 448 of the Indian Penal

Code.

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

that appellant had disputes with his cousin Prafulla Sarkar (P.W. 1).

Due to such dispute, on 16.04.2004 around 1 a.m. he trespassed into

their house and threw acid on the face of Mamata, daughter of Prafulla

and his wife, Abala. Hearing hue and cry, Prafulla woke up and saw the

appellant. He and his wife tried to catch hold of the miscreant but he

fled away. Victims were initially taken to Tehatta B.P.H.C. and treated.

Mamata was taken for better treatment to Saktinagar hospital and

thereafter she was treated at N.R.S. Medical College and hospital. Apart

from burn injuries on her face and body she suffered injuries in her eyes

and was under treatment for a protracted period of time. On the written

complaint of Prafulla (P.W. 1), First Information Report came to be

registered being Tehatta P.S. Case No. 80 of 2004 dated 17.04.2004

under Section 326 of the Indian Penal Code against the appellant.

Appellant was arrested in course of investigation. In conclusion thereof,

charge-sheet was filed against the appellant. Charges were framed under

Sections 448 and 307/34 of the Indian Penal Code. Appellant pleaded

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

examined 11 witnesses and exhibited number of documents.

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

order dated 24th February, 2005 and 25th February, 2005 convicted and

sentenced the appellant, as aforesaid.

Mr. Edulji, Mr. Banerjee and Mr. Dutta learned Advocates

appearing for the appellant argue that the prosecution case is riddled

with contradictions and inconsistencies. In the First Information Report

it is claimed that the victim and her mother were sleeping in a room but

in Court they deposed they were sleeping in the verandah. Injury report

of mother of the victim, Abala has not been produced. Police also did not

seize the broken jute sticks and lantern from the place of occurrence.

Wearing apparels of the victim and her mother, pillow and other articles

were also not seized. Though Abala (P.W. 7) claimed acid bottle was

seized, her version is not corroborated by Investigating Officer, P.W. 10.

Sketch map also does not indicate the verandah in the house of Prafulla.

P.W. 4 was examined after a considerable period of time. Her deposition

and that of her mother Abala (P.W. 7) suffers from gross

embellishments. Hence, prosecution case has not been proved and the

appellant is entitled to an order of acquittal.

On the other hand, Ms. Gaur, appearing for the State submits

evidence of the injured witness, P.W. 4 and her mother, P.W. 7 is

corroborated by P.W. 1, the father of the victim and the informant. Their

depositions receive support from neighbours as well as doctor who

treated P.W. 4 at Saktinagar Hospital. Hence, acid burn injuries suffered

by P.W. 4 is proved beyond doubt. Presence of appellant at the place of

occurrence has also been established. In this backdrop, remissness in

investigation would not affect the intrinsic truth of the prosecution case.

Thus, appeal is liable to be dismissed.

P.W. 1 (Prafulla Sarkar) is the informant and father of the victim.

He deposed on the fateful night he was sleeping in a cot in his room and

his wife and daughter were sleeping in another cot in the verandah. The

appellant entered the house by cutting the jute stick wall and after

crossing his room entered the verandah. He threw acid on the face of his

daughter and some acid also fell on the hand of his wife. His daughter

cried for help. He tried to catch hold of the appellant but the latter

kicked him and ran away through the broken jute stick wall. He chased

the appellant but could not catch him. He took his daughter and wife to

Tehatta hospital. His wife was given primary treatment and released. His

daughter was referred to Saktinagar hospital for better treatment. He

lodged written complaint which was scribed by P.W. 11.

In cross-examination, he stated four/five months ago dispute

cropped up between himself and the appellant. He admitted pillow cover

and bed cover had got burnt but the I.O. did not seize them. He also did

not seize broken jute sticks, burnt pillow cover, wearing apparels of the

victim and saree of his wife.

P.W. 4 (Mamata Sarkar) is the injured victim and most vital

witness. She deposed on the night of the incident she was sleeping with

her mother in the verandah. Her father was inside the room. All of a

sudden she woke up and found acid thrown on her face. Appellant was

standing near the cot. She identified the appellant in the light of the

lantern. She shouted taking the name of the appellant. Her mother and

father caught hold of the appellant but he ran away. His father chased

the appellant. She lost her senses and on the next day she found she

had been admitted at Saktinagar hospital. She remained in the hospital

for ten to twelve days. Her entire face and shoulder had been burnt upto

abdomen below her left breast. She was treated at N.R.S. Medical

College and hospital. She continued to be treated at Barrackpore and

Krishnagar for injuries in her eyes.

P.W. 7 (Abala Sarkar) mother of the victim corroborated her

version and stated she woke up hearing the cries of her daughter. She

shouted for help and caught the appellant. Her husband also caught the

appellant. But the appellant ran away. Her husband chased the

appellant. She along with her daughter went to Tehatta hospital in a

trecker. She had sustained burn injury on the right side of her back.

She was treated at Tehatta hospital.

P.W. 8, Dr. Joydip Roy, is the doctor who treated Mamata Sarkar

(P.W. 4) at the District Hospital, Krishnagar. He deposed on 17.04.2004

he treated Mamata Sarkar, daughter of Prafulla Sarkar, who was

referred to the District Hospital, Krishnagar from Tehatta B.P.H.C.

Mamata received acid burn injuries over face, neck and chest and minor

area of lower limbs. About 15% of her body was burnt. She had suffered

conjunctival interaction and was referred to Eye Specialist. She was

discharged on 25.04.2004 with advice to attend Plastic Surgeon O.P.D.

at N.R.S. Medical College and Hospital. He proved the bed-head ticket

as Exhibit- 3. In cross-examination, he stated that he had not stated

the name of the accused who caused such assault in the medical

papers.

In addition to the support from the version of the aforesaid

medical witness, depositions of Mamata (P.W. 4) and her mother, Abala

Sarkar (P.W. 7) are corroborated by neighbours namely P.W. 2 (Paresh

Biswas), P.W 3 (Kamal Mondal) and P.W. 6 (Niranjan Biswas). All of

them stated hearing hue and cry they had gone to the house of Prafulla

Sarkar who told them that the appellant had thrown acid upon his

daughter.

P.W. 5, Jadav Sarkar, brother-in-law of Prafulla Sarkar also

came to the place of occurrence and was informed about the incident.

From the aforesaid evidence I find place of occurrence as well as

manner of assault on Mamata and her mother have been fully

established. They were sleeping in the verandah of the house on the

fateful night. Her father was sleeping in the room. Appellant, who had

prior grudge with the father of the victim, trespassed into the house at

around 1 a.m. by breaking the jute stick wall and threw acid on

Mamata Sarkar (P.W. 4). Some acid also fell on her mother, Abala (P.W.

7). Mamata woke up and saw the appellant. She cried out for help. Her

parents accosted the appellant but he managed to flee away.

Mr. Edulji, contends the place of occurrence has not been fixed.

In F.I.R., it is stated that the victim and her mother were sleeping in the

room while in Court they claimed they were sleeping in the verandah.

Sketch map prepared by I.O. does not disclose verandah in the house of

Prafulla.

From the evidence of P.W. 7, mother of the victim, it appears

that verandah is a covered one with a door. Hence, P.W. 1 described the

covered verandah as a room in the F.I.R. Such minor variation in the

description of place of occurrence in the F.I.R. does not affect the

credibility of the prosecution case which is clearly established through

the consistent deposition of the victim (P.W. 4) and other witnesses in

Court. Failure of the I.O. to prepare a detailed sketch map also does not

erode the prosecution case. Sketch map made by I.O. is not substantive

evidence. On the other hand, topography of the house is established by

the evidence of its inmates, namely, P.W. 1, 4 and 7. It is also argued

there was delay in examining the victim (P.W. 4). Neither Mamata (P.W.

4) nor her mother (P.W. 7) had stated Mamata had shouted the name of

the appellant after the incident or that her parents had caught hold of

the appellant but he fled away. In the present case, we note that the I.O.

had not conducted the investigation in proper earnest. He did not

collect the medical papers of Mamata (P.W. 4) and her mother, Abala

Sarkar (P.W. 7) from Tehatta Hospital. Hence, it is most likely he

recorded their statements in a most cryptic manner. Absence of minute

details of the incident in their earlier statements recorded by I.O. does

not affect the intrinsic truth of their version in Court. Every omission in

a previous statement of a witness does not amount to a material

contradiction unless such omission is so material and significant it

destroys the credibility of her version in Court. On the other hand,

presence of the appellant at the place of occurrence has been clearly

disclosed by Prafulla Sarkar in the F.I.R. F.I.R. was lodged soon after

the incident and, therefore, possibility of false implication of the

appellant is clearly ruled out. Crux of the prosecution case as narrated

by the victim (P.W. 4) and her mother (P.W. 7) in Court is consistent

with their earlier statements before police. Their versions receive

corroboration from the deposition of independent witnesses, that is

neighbours who rushed to the place of occurrence and were informed by

P.W. 1 that the appellant was the assailant. In this backdrop, failure to

record name of the appellant in the medical papers loses significance.

Medical personnel as well as father of the victim were more eager to

save her life than to record the name of the assailant in the injury

report. Injury report proved by P.W. 8, treating doctor, shows extensive

acid burn injuries on the victim. All the witnesses stated Abala Sarkar,

mother of the victim (P.W. 7) had also suffered acid burn injuries on her

body and was treated at Tehatta Hospital. I.O., for reasons best known

to him, failed to collect the injury reports from Tehatta Hospial. Such

failure, on his part, discloses a casual approach in the investigation in a

case involving acid attack upon the victim and her mother. It cannot be

a ground to disbelieve their convincing and corroborated versions of the

victims in Court. Similar glaring lapses in investigation are noted in

this case. I.O. did not seize the wearing apparels of the victim and her

mother. Acid bottle, though taken custody by the Investigating Officer,

was not produced in Court. He also did not seize the burnt pillow and

bed cover from the place of occurrence. As I find versions of the victim

(P.W. 4) and her mother (P.W 7) convincing and corroborated by other

independent witnesses including medical evidence, I am of the opinion

these remissness in the investigation in a case involving acid attack on

a young lady, though appalling and deplorable, does not affect the

credibility of the prosecution case. I.O. ought to have investigated the

crime with more diligence and dedication. Much is left to be desired in

the role played by the investigating agency. However, in the light of the

evidence of the victim (P.W. 4) and her parents which is corroborated by

independent witnesses and medical evidence, I am of the opinion

prosecution case against the appellant is proved beyond doubt.

Conviction of appellant is, accordingly, upheld. He is directed to

surrender forthwith and serve out remainder of his sentence in

accordance with law.

Coming to the issue of sentence, it is argued by the learned

Counsel appearing for the appellant that the incident occurred 18 years

ago. Hence, sentence of the appellant may be reduced.

I find victim Mamta barely 18 years of age when she had suffered

acid burn injuries on her face and body. Her face was disfigured and she

suffered grave injuries in her eyes. No mitigating factor with regard to

the appellant is evident from the materials on record. He was a relation

of the victim and threw acid at her due to previous grudge. In view of

gravity of the offence causing indelible injuries on the face and eyes of

the victim, I am of the view merely lapse of time would not mitigate its

impact which would justify reduction of the proportionate sentence

imposed on the appellant. Sentence of the appellant is, thus, upheld.

Hence, the appeal being CRA 200 of 2005 is dismissed.

Accordingly, connected application being CRAN 2 of 2019 (Old

CRAN 1861 of 2019) is also dismissed.

Period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off against the substantive sentence

imposed upon him in terms of 428 of the Code of Criminal Procedure.

Bail bonds of the appellant are cancelled and he is directed to

surrender forthwith and serve out the remainder of the sentence in

accordance with law. If he fails to do so, trial Court shall resort to

appropriate processes to 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.)




cm/sdas/PA (Sohel)