Sudal Roy & Anr vs State Of West Bengal
2022 Latest Caselaw 2649 Cal

Form J(2)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Appellate Jurisdiction
                                Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri


                         C.R.A. 244 of 2016


                           Sudal Roy & Anr.
                                  Vs.
                         State of West Bengal


For the Appellant        :   Mr. Arkadeb Bhattacharjee, Adv.


For the State            : Ms. Faria Hossain, Adv.,
                           Mr. Anand Keshari, Adv.


Heard on                 :   02.05.2022, 06.05.2022, 10.05.2022.


Judgment On              : 10.05.2022.



Bibek Chaudhuri, J.

The appellants have assailed the judgement and order of

conviction passed in Sessions Trial No. 65 of 2013 arising out of Sessions

Case No. 40 of 2009 for the offence punishable under Sections 324/34 of

the Indian Penal Code and Section 304 II/34 of the Indian Penal Code.

The learned Trial Judge handed down sentence to the appellants for the

offence punishable under Sections 324/34 of the Indian Penal Code for

rigorous imprisonment for a period of two years along with fine of

Rs.1,000/-, in default to suffer simple imprisonment for further two

months. He also handed down sentence for the offence punishable under

Sections 304 II/34 of the Indian Penal Code against the appellants to

suffer rigorous imprisonment for seven years along with fine of

Rs.50,000/- each, in default to suffer simple imprisonment for six

months each. A sum of Rs.90,000/- was directed to be paid to the family

member of the victim towards compensation, if realised.

The fact of the case as disclosed from the FIR is that on 19th

September, 2006 at about 12.30 p.m. one Suresh Roy, since deceased

and his brothers, namely, Badal Roy and Sudal Roy trespassed into the

house of the de facto complainant and started abusing them with filthy

language. Hearing such abusing words, the elder brother of de facto

complainant, namely, Jyotish Sarkar came out of his room. Seeing him,

the accused persons started assaulting the elder brother of the de facto

complainant on the allegation that a cow belonging to the family of the

de facto complainant was grazing in the land of the said Suresh. In

course of altercation, Suresh assaulted Jyotish Sarkar, elder brother of

the de facto complainant with the sharp end of a crowbar on his head.

On being assaulted as such, the elder brother of the de facto

complainant fell down on the ground then Sudal Roy assaulted the elder

brother of the de facto complainant on his chest with the help of a

bamboo. The wife of the elder brother of the de facto complainant

rushed to the place of occurrence raising hue and cry saying "bancho

bancho". At that time the accused Badal Roy assaulted the wife of the

elder brother of the de facto complainant with the help of a "dao" on his

hand causing bleeding injury. The sons of Jyotish Sarkar, namely,

Babulal and Manik rushed to the spot and saved their parents from the

hands of the accused persons but they were also assaulted to death.

Hearing hue and cry of the injured persons, local people and the de facto

complainant reached the place of occurrence and shocked that the elder

brother of the de facto complainant was lying on the ground almost in

unconscious state. Habitually he and his wife were sent to Moynaguri

Hospital where the attending doctor examined them and the elder

brother of the de facto complainant was declared a dead.

On the basis of the said complaint, police registered Moynaguri

Police Station Case No. 182 of 2006 under Sections 447/324/325/304/34

of the Indian Penal Code and took up the investigation of the case. The

investigation concluded with filing of the charge-sheet against three

above named accused persons before the jurisdictional Magistrate. Since

the offence under Section 304 of the IPC is exclusively triable by the

Court of Sessions, the case was committed to the court of the learned

Sessions Judge, Jalpaiguri. Subsequently it was transferred to the 2nd

Fast Track Court of the learned Additional Sessions Judge for Trial and

disposal.

It is pertinent to mention here that during the pendency of the

trial accused, Suresh Roy died and the case against Suresh Roy, since

deceased, was filed forever. The remaining two accused persons who

are appellants before this Court suffered an order of conviction and

sentence. Hence, the instant appeal.

Since the filing appellants failed to take any step because of the

fact that the appellants are languishing in correctional home to serve

sentence passed by the Trial Court and there is nobody to look after the

instant appeal on behalf of the appellants in jail, this Court requested Mr.

Arkadeb Bhattacharjee, Learned Advocate to act as an Amicus Curiae on

behalf of the appellants and help the Court to decide the appeal on

merit. Mr. Bhattacharjee readily accepted the proposal made to him by

this Court and he submits on behalf of the appellants with all his vigour

and diligence.

Mr. Bhattacharjee has criticized the impugned order of conviction

on the following grounds:-

(a) The prosecution has failed to prove the place of occurrence;

(b) As per the prosecution case, accused Suresh, since

deceased, Sudal and Badal assaulted the deceased with 'dao'

and 'lathi'. As per the FIR accused Suresh Roy assaulted the

deceased on his head, while Badal Roy assaulted the wife of

the victim with a sharp cutting chopper and Sudal Roy

assaulted the victim on his chest with the help of a piece of

bamboo. The FIR story was not subsequently substantiated

by the witnesses. P.W. 1, Anil Sarkar is the brother of the

deceased. Though he corroborated the FIR story that Suresh

gave a blow on the head of the victim with 'dao' but stated

that accused Badal assaulted the victim on his chest by a

wooden bottom. Again he stated that accused Sudal Roy

assaulted the deceased on his head with a 'dao'. He also

stated that Sudal gave a blow on the left hand of the victim's

wife. P.W. 2, Paban Sarkar stated in his evidence that he

saw a 'dao' in the hand of Suresh, he also saw bleeding

injury on the head of Jyotish Sarkar. It is also stated by him

that accused Sudal assaulted Jyotish on his chest with a

stick. P.W. 3, Supriya Sarkar made a general statement in

his evidence to the effect that Badal, Sudal and Suresh

assaulted the deceased on his head twice with 'dao' and they

also assaulted him with a wooden bottom on his chest. It is

also narrated by P.W. 3, Supriya Sarkar that accused

persons assaulted the wife of the victim, Chinu Sarkar on his

head. P.W. 4, Manik Sarkar was absolutely silent in respect

of the role of accused Suresh Roy, since deceased. From his

evidence it is ascertained that Badal assaulted the deceased

on his chest with a piece of wood and Sudal hit the victim on

his head twice. Sudal also assaulted the wife of the

deceased on his head and all the accused persons assaulted

Manik Sarkar and Babulal Sarkar. P.W. 5, Rinu Sarkar stated

that all the accused persons assaulted Manik and Babulal.

Badal Roy also assaulted the witness on her hand with a

'dao' and Sudal gave two blows by his 'dao' on the head of

deceased Jyotish Sarkar. Then P.W. 8, Babulal Sarkar stated

on oath that Suresh Roy assaulted the deceased on his head

by a 'lathi'. Badal Roy assaulted the deceased on his head

with 'dao' and Sudal Roy assaulted the victim on his chest

with wooden part of the plough. P.W. 9 and 10, namely,

Malati Sarkar and Biren Sarkar stated that all the accused

persons murdered the deceased with 'lathi' and 'dao'.

Thus, it is submitted by Mr. Bhattacharjee that from the evidence

of the witnesses it can be easily ascertained that deceased Jyotish

Sarkar received multiple blows on his head. But the Autopsy Surgeon

(P.W. 6) only found one deep inside wound measuring about 4" X 2" X 1"

over the left side of occiput with blood clot in and around the wound.

Apart from the above wound, the Autopsy surgeon did not find any other

injury on the head of the deceased. Superficially he found beside the

above mentioned head injury, one abrasion at the region of

hypocondrium i.e., on the upper part of the abdomen. Thus, it is

contended by Mr. Bhattacharya that from the evidence on record it

cannot be ascertained as to who gave the fatal blow to the deceased. In

view of such discrepancy in evidence on record it is submitted by the

learned amicus curiae that when the witnesses stated differently about

the role of each of the accused persons, they ought to have been

entitled to benefit of doubt. It is further submitted by the learned

amicus curiae that the FIR narrates a story where the accused persons

allegedly abused the elder brother of the de facto complainant on 9 th

September, 2016 at about 12.30 P.M. When his elder brother came out

of his room, the accused persons assaulted him entering into his room.

Therefore, as per the FIR, the place of occurrence is inside the house of

the deceased Jyotish Sarkar. During investigation statements of Babulal

Sarkar and Paban Sarkar were recorded. From their statement it is

found that accused Suresh Roy, since deceased, wrapped a napkin

(gamcha) around the neck of Jyotish Sarkar and pulled him to the land

situated by the side of a well belonging to Jyotish Sarkar and his family.

Then Suresh assaulted his father with the help of a 'Dao'. Jyotish fell

down on the ground receiving the said blow. Then Sudal assaulted him

with a piece of wooden 'bottom'. Subsequently, Badal assaulted his

mother with the help of a 'Dao'. The statement of witness Paban Sarkar

is almost similar to that of Babulal's. It is urged by Mr. Bhattacharya

that there is a big discrepancy in respect of the place of occurrence

between the FIR and the statement of the above named witnesses

recorded under Section 164 of the Code of Criminal Procedure. It is

admitted by Mr. Bhattacharya that neither FIR nor the statement under

Section 164 of the Code of Criminal Procedure can be treated as

substantive evidence and they can only be used for the purpose of

contradiction or corroboration. Thus, when the statements on oath of the

witnesses are examined with their previous statements one would find

glaring differences where the presence and role of each of the accused

persons were differently stated by different witnesses. Mr.

Bhattacharjee next draws my attention to the sketch map prepared by

the Investigating Officer of this case. As per the sketch map the place of

occurrence is on the land of Jyotish Sarkar. It also appears that there is

a tree and a well on the said land. The house of Jyotish Sarkar is on the

eastern side of the place of occurrence intervened by his cowshed and

kitchen. If the Investigating Officer is to believed then the FIR story as

well as the evidence of the de facto complainant Anil Sarkar cannot be

believed. Therefore, the evidence on record is not clear as to the place

of occurrence and it is also doubtful as to whether the witnesses who

claimed themselves to be the eye witnesses of the occurrence are really

eye witnesses or not. In view of the aforesaid lacuna the impugned

order of conviction and sentence ought to be set aside.

Referring to a recent judgment of the Hon'ble Supreme Court in

the case of Viram alias Virma versus State of Madhya Pradesh

reported in (2022) 1 SCC 341, it is submitted by Mr. Bhattacharjee

that the autopsy surgeon did not find more than one wound on the

head of the deceased which was considered to be fatal for the

deceased. In the above mentioned report it was observed by the

Hon'ble Supreme Court that the medical report submitted therein

established that there were only contusions, abrasions and fractures,

but there was no incised wound on the left knee of the deceased as

alleged by a witness. Therefore, the evidence of the witness was

found to be totally inconsistent with the medical evidence and that

would be sufficient to discredit the entire prosecution case. Coming to

the instant case, it is submitted by Mr. Bhattacharjee that evidence of

so-called ocular witnesses is not only inconsistent with the medical

evidence but they contradicted with each other about the role of the

accused persons.

In view of such circumstances, the appellants are entitled to get

benefit of doubt and the learned trial Judge failed to appreciate the

evidence on record in its true and proper perspective.

Mr. Anand Keshari, learned P.P.-in-charge, on the other hand,

submits that the evidence on record is consistent as to the injury of

the victim. There may be some exaggeration or discrepancy in the

evidence of the eye witnesses but for this reason entire evidence of

the eye witnesses cannot be discredited. He invites the Court to

consider a situation where a person was seriously injured in front of

his house and it is natural that the family members and adjoining

people would rush to the place of occurrence to see the incident.

There may be some discrepancy as to the role of each of the accused.

During passage of time the witnesses may forget the specific role

attributed to the accused persons. Therefore, in the evidence there

may be some discrepancies and contradictions, which ought to be

accepted as minor contradictions. It is found from the entire evidence

on record that the appellants were involved in committing culpable

homicide not amounting to murder of deceased Jyotish Sarkar.

Therefore, the accused persons were rightly convicted with the aid of

Section 34 of the Indian Penal Code.

Having heard the learned advocates for the parties and on

perusal of the entire evidence on record, it appears from the evidence

of all the witnesses who claimed themselves to be the eye witnesses

that the victim Jyotish Sarkar was attacked by Suresh since deceased,

Sudal and Badal on 19th September, 2006 at 12.30 P.M. In the FIR the

de facto complainant stated that the accused persons illegally

trespassed into the room of the deceased and assaulted them.

However, in evidence he stated that the accused persons came

running to their house and dragged his elder brother Jyotish Sarkar

by wrapping a napkin (gamcha) around his neck to their agricultural

land and thereafter they assaulted him. It is needless to say that FIR

is not an encyclopaedia of the incident. The purpose of FIR is to set

the criminal administration of justice in motion. The de facto

complainant of course did not state that his elder brother was

dragged to the agricultural land situated by the side of his

house/room. This omission cannot be treated as substantial omission

in view of the fact that the sketch map, statements of Babulal and

Manik recorded under Section 164 of the Code of Criminal Procedure

and the statement other witnesses recorded under Section 161 of the

Code of Criminal Procedure led the Investigating Officer to pinpoint

the place of occurrence which is on the land outside the house of

Jyotish Sarkar.

It is true that there are exaggeration in the evidence of the

witnesses. However, it is not in dispute that the present appellants

were parties in assaulting the deceased and practically no cross-

examination was made on behalf of the defence raising a doubt about

their presence at the place of occurrence on the date and time of the

incident to create a doubt in the mind of the Court about their

presence and participation in the offence.

Some of the witnesses stated that the victim suffered multiple

blows on his head. However, the Medical Officer found only one deep

incise looking lacerated wound on the head of the victim. It is

probably lost sight of the learned amicus curiae that all the witnesses

stated that the accused Sudal Roy assaulted the deceased on his

chest and the autopsy surgeon found fractures of 10 th and 11th ribs

with extradural haemorrhage on the chest. He found bruise on the

right side of hypo condrium i.e., upper part of the chest just below the

chest ribs. The autopsy surgeon opined that the deceased died due to

shock and haemorrhage following the above noted injuries.

Therefore, fracture of 10th and 11th chest ribs with extradural

haemorrhage is also a cause of death of the deceased beside the head

injury.

Last but not the least the entire incident took place over an

issue of grazing of a cattle and the accused persons claimed that a

calf belonging to deceased Jyotish Sarkar entered into their

agricultural land. Therefore, the reason behind incident can also be

deciphered from the evidence on record.

In view of the above circumstances, I do not find any reason to

interfere with the order of conviction passed by the learned Court

below.

Now comes the question of sentence. The appellants were

sentenced to suffer imprisonment for seven years with fine of

Rs.50,000/- each, in default, to suffer six months simple

imprisonment for the offence under Section 304II/34 of the Indian

Penal Code. It is also directed that if the fine amount is paid by the

appellants, a sum of Rs.90,000/- would be paid to the widow of the

deceased Jyotish Sarkar. Section 357(1) of the Code of Criminal

Procedure provides for four grounds where compensation can be

granted. The aforesaid provision is quoted below:-

"357. Order to pay compensation. - (1) When a Court

imposes a sentence of fine or a sentence (including a sentence of

death) of which fine forms a part, the Court may, when passing

judgment, order the whole or any part of the fine recovered to be

applied -

(a) in defraying the expenses properly incurred in the

prosecution;

(b) in the payment to any person of compensation for any

loss or injury caused by the offence, when compensation

is, in the opinion of the Court, recoverable by such person

in a civil court;

(c) when any person is convicted of any offence for having

caused the death of another person or of having abetted

the commission of such an offence, in paying

compensation to the persons who are, under the Fatal

Accidents Act, 1855 (13 of 1855), entitled to recover

damages from the person sentenced for the loss resulting

to them from such death;

(d) when any person is convicted of any offence which

includes theft, criminal misappropriation, criminal breach

of trust, or cheating, or of having dishonestly received or

retained, or of having voluntarily assisted in disposing of,

stolen property knowing or having reason to believe the

same to be stolen, in compensating any bona fide

purchaser of such property for the loss of the same if such

property is restored to the possession of the person

entitled thereto."

In the instant case, compensation to the widow of the

deceased can only be paid in defraying the expenses incurred

by her during trial of the case. However, the trial of the case

was conducted by the State. The widow of the deceased or

other witnesses did not spend any money to conduct the

prosecution. Moreover, in respect of other grounds by such

specific act of the appellants, neither the de facto complainant

nor the widow of the deceased can claim compensation which is

recoverable by such person in a Civil Court. Clause C and D

deals with compensation in cases under the Fatal Accident Act

and in respect of criminal misappropriation, criminal breach of

trust or cheating.

In view of such circumstances, though I am of the view

that substantial sentence of imprisonment should continue,

however, the trial Court cannot direct to pay substantial portion

of fine amount to the widow of the victim. In order to pay

compensation to the victim the learned trial Judge imposed fine

amount in an excessive high rate without considering the fact

that the accused persons are agricultural labourers.

Therefore, the sentence with regard to payment of fine is

modified and the accused persons/appellants are sentenced to

pay fine of Rs.5,000/- each, in default, to suffer simple

imprisonment for one month each. The part of sentence with

regard to fine passed by the trial Court is accordingly set aside

and modified in the instant appeal.

Accordingly, the appeal is allowed in part.

Let a copy of this judgment be sent to the Court below

along with the lower Court record.

Before I part with, I must express my sincere thanks to

the learned amicus curiae for doing the case with great diligence

and sincerity.

(Bibek Chaudhuri, J.)

pk, srimanta, suman, A.R.s (Court)