Calcutta High Court (Appellete Side)
Kanai Dolui & Ors vs The State Of West Bengal & Anr on 16 September, 2022
IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRA 132 of 2004
Kanai Dolui & Ors.
Vs.
The State of West Bengal & Anr.
For the Appellants : Mr. Prabir Kumar Mitra,
: Ms. Subhanwita Ghosh.
For the State : Mr. N. P. Agarwal,
: Mr. Ashok Das.
Heard on : 30.06.2022
Judgment on : 16.09.2022
Shampa Dutt (Paul), J.:
The appeal is against the judgment and order dated 21.02.2004 passed
by the Learned Additional Sessions Judge, 1st Fast Track Court, Midnapur, in
Sessions Trial Case No. 55, November, 1998, convicting the appellant no. 1
Kanai to suffer simple Imprisonment for two years and to pay a fine of Rupees
3,000/- in default S.I. for three months for offence under Section 324 I.P.C.
and for the offence under Section 114/304 part II, simple imprisonment for
seven years and to pay a fine of Rupees 10,000/- in default S.I. for 1 year. The
appellant no. 2 Krishna has been sentenced to simple imprisonment for seven
years for the offence punishable under Section 114/304 part-II of the Indian
Penal Code and a fine of Rupees 10,000/- in default to suffer S.I. for 1 year,
75% of fine amount would go to the family of deceased. All the appellants have
been sentenced to two years simple imprisonment and a fine of Rupees 2,000/-
each, in default to suffer S.I. for two months for the offence under Section 148
of the Indian Penal Code.
The appeal is on the grounds that judgment and order of conviction and
sentence is bad in law and against the evidence on record and is liable to be set
aside. That the learned Trial Judge did not consider the defence case in its
proper perspective and caused serious prejudice to the appellant which has
resulted in gross miscarriage of justice. The judgment and order under appeal
is based on the evidence on interested witnesses. That there has been a land
dispute between parties and as such the chance of the appellant being falsely
implicated is very high. That the accused persons also suffered injuries
wherein the complainant and others entered the premises of the
appellant/convicts. There is contradictions between the witnesses in their
evidence before the Trial Court and that the entire trial before the Trial Court
not being in accordance with law, the judgment and order of conviction and
sentence under appeal is liable to be set aside.
Prosecution case
Prosecution case is that on 03.09.2006 at about 6.30/7.00 a.m., when
the de facto complainant Swapan Dolui and his elder brother Ramkrishna
Dolui were cutting bamboos from their bamboo grove on the north of their
house, then firstly accused Krishnapada, Balaram, Kanai, Nemai and Achinta
came there with axe, tangi, pekhra, katari etc. and resisted them. An
altercation ensued. At that time, de facto's other brother Tapan, Debendranath
Dolui, Debendra's wife Panchamai and sons Balai, Nemai and Sankar arrived
at the spot. The accused persons began to strike them at random. At first,
accused Kanai hit Panchami on her shoulder and left hand with 'pekhra', and
she sustained severe injury. Then accused Panchubala and Arati came to the
spot with 'katari' and participated in the altercation. Ramkrishna Dolui who
was standing at some distance from the place was held from behind by accused
Krishnapada and accused Kanai struck him on the left side of his neck
violently by 'Pehkhra'. Ramkrishna got severe injury and suffered profuse
bleeding from such injury and he died on the spot. Panchami was taken to
Chandrakona hospital in a serious condition, while the other injured persons
were Debendra, Balai, Tapan, Kanai and Sankar who were also sent to
Chandrakona hospital. Upon the complaint lodged by the de facto complainant,
Chandrakona P.S. case no. 71/96 dated 03.09.1996 was started, and
thereafter on completion of investigation, charge-sheet has been filed against
the above-mentioned accused persons.
On the basis of materials, all the accused persons have been charged for
the offences punishable under Section 148, 149/302, 149/326, 149/324 and
149/323 I.P.C., to which they have pleaded not guilty and claimed to be tried.
Mr. Prabir Kumar Mitra learned lawyer for the appellant/convicts
submits that from the evidence on record it is clearly seen that there was a civil
dispute between the parties and there was a free fight at the time of incident in
this case and the convict/appellants have been falsely implicated in this case
and it is further submitted that the judgment and order of conviction and
sentence not being in accordance with law is liable to be set aside.
Mr. N.P. Agarwal learned Additional Public Prosecutor submits that
the prosecution has proved their case against all the appellant/convicts beyond
all reasonable doubt by way of oral and documentary evidence and there is
absolutely no discrepancy in the said evidence before the Trial Court including
the evidence of the eye witnesses and the Doctor and the documentary
evidence which has totally corroborated the oral evidence in this case and the
judgment and order of conviction and sentence being in accordance with law,
the Appeal is liable to be dismissed.
Evidence on record
The prosecution in all examined twenty witnesses. The defence examined
none but cross examined the prosecution witnesses.
Prosecution witness no. 1 Swapan Dolui. This witness has identified all
the accused persons on dock and has stated that when his elder brother
Ramkrishna Dolui and he were cutting bamboo from their bamboo grove at
that time accused Krishnapada, Balaram, Kanai, Nemai and Achintya of village
Dewra came to the spot being armed with katari, pekhra etc. and tried to
restrain them from cutting bamboo. Over this an altercation took place
between them and the accused persons. Then other accused persons came
to the spot along with others and tried to restrain the accused persons but
accused Kanai assaulted Panchami with pekhra on her right shoulder causing
grievous cut injury. Then accused Panchubala and Arati assaulted the
complainant and others with katari and accused Kanai, son of Babal inflicted a
blow with 'pekhra' at the left hand of witness Balai and Tapan. The accused
Krishna caught Ramkrishna from behind and accused Kanai inflicted a heavy
blow on the left side of the neck of Ramkrishna with pekhra causing serious
bleeding injury. Ramkrishna died on the spot. Injuried Panchami, Balai and
Tapan were taken at Chandrokona B.P.H.C. On hearing human cry when
villagers rush to the spot the accused persons fled away. The written complaint
was filed by the witness (Exhibit 1). This witness is also the witness to the
inquest (Exhibit 2). It has been stated by the witness that the disputed land on
which the bamboo grove is situated was given to them by way of Patta from the
Government. The documents relating to the said land was seized by the police
along with blood stained earth and control earth of the place of occurrence
(MAT Exhibit 1). On being cross examined this witness has corroborated his
evidence as stated in his chief and has again admitted in his cross examination
that there was an altercation going on between the parties and no villagers
came there at that time. At the time of the altercation when the victims raised
alarm Bijay, Sadhan, Kshudiram, Sarbeswar and some others came to the
spot. This witness could not say whether Habol, father of the male accused
persons got patta in respect of the remaining six decimals in the plot and has
admitted that they have dispute with the accused persons over the
bamboo grove. Balai, Tapan and Panchami also sustained bleeding injuries
during the incident and this witness has stated that accused Arati was armed
with a lathi. Accused persons did not sustain any injuries during the incident.
It has been further stated that Bulu, wife of Ramkrishna was present at that
time but she did not resist accused persons from assaulting Ramkrishna.
Prosecution witness no. 2 Bulurani Dolui is the wife of deceased
Ramkrishna and the sister in law of the complainant. On oath she has stated
that an altercation took place between accused and Ramkrishna and his
brother (PW 1). Accused Kanai assaulted Panchami on her right shoulder with
a 'pekhra' and also on Balai's and Tapan's right hand. Accused Panchubala
and Arati assaulted by katari and lathi. Debendra was also assaulted with
Kanai. Accused krishna caught her husband Ramkrishna from behind and
Kanai inflicted a blow with pekhra on neck of Ramkrishna. She has stated that
though she tried to save her husband the accused persons did not listen. This
statement is in contradiction to the statement of PW 1. On cross examination
she has stated that she did not try to shield Ramkrishna from the accused
persons. She only requested them.
Prosecution witness no. 3 Nemai Dolui is a Co-villager. He has
corroborated the evidence of PW 2. This witness's mother was allegedly
assaulted by accused Kanai.
Prosecution witness no. 4 Mansoram Shee Prosecution witness no. 6
Rampada Dolui, Prosecution witness no. 9 Debendra Nath Dolui, Prosecution
witness no. 10 Balai Dolui, Prosecution witness no. 11 Panchami Dolui,
Prosecution witness no. 12 Sankar Dolui, Prosecution witness no. 14 Dinanath
Shee, Prosecution witness no. 15 Kanai Dolui, Prosecution witness no. 16
Tapan Dolui are Co-villagers and are eye witnesses and have corroborated the
case of the complainant.
Prosecution witness no. 5 Sataya Sankar Acharya is Assistant Land
Acquisition Officer, Midnapore Collectorate, who was B.L. & L.R.O. at
Chandrokona, II-Block on 16.08.1996. He has proved his report marked
Exhibit 3 which was submitted to O.C. of Chandrokona P.S. regarding some
land dispute. He has admitted in his cross examination that the report does
not contain the description of any land nor the names of the parties and has
proved Exhibit A which is the record of rights in respect of plot no. 232 Mouza
Rajguanje P.S. Chandrokona recorded in the name of Habal Dolui.
Prosecution witness no. 7 Dr. Anil Kumar Bhowmick and
Prosecution witness no. 8 Dr. Kamal Krishna Maity and Prosecution
witness no. 20 Dr. Tarapada Ghosh are all Medical Officers. PW 7 is the
Doctor who held the post mortem over the dead body of Ramkrishna Dolui and
has proved the post mortem report (Exhibit 4) in court. Evidence of this witness
is of extreme importance in this case. The evidence of this witness to a certain
extent is being reproduced herein.
"The injury as found by him was sufficient enough in the ordinary course
of nature to death of a person.
This is called pekhra (The witness was shown one weapon out of
material Exhibit MAT-1). The injury as noticed on the dead body cannot
be caused by this pekhra, even if the impact of a struck of pekhra having
length and the breadth of this type (as the witness was shown) the injury
as noticed in the present case, cannot be caused."
On being cross examined this witness has stated "the injury on the
neck of the dead body as noticed by him might be caused due to fall upon
some slightly curve sharp cutting weapon or instrument. Pekhra is not a
curved weapon".
PW 8 and PW 20 had examined the injured persons at the Block Primary
Health Centre and proved the injury reports.
Prosecution witness no. 13 Laxminarayan Ghosh is the scribe of the
written complaint Exhibit 1.
Prosecution witness no. 17 Sripada Mal is a constable who identified
the body.
Prosecution witness no. 18 Subal Chandra Das is the Police Officer
who held inquest over the dead body (Exhibit 6) and sent the body for post
mortem.
Prosecution witness no. 19 Narayan Chandra Bhatta is the
Investigating Officer.
Analysis of evidence
From the evidence on record it has come before the Trial Court that there
was a free fight and altercation between the parties. There was a land dispute
(Exhibit 3) as seen from the evidence of PW 5 Assistant Land Acquisition
Officer. It is seen that it is now a road and that the patta in respect of the land
was to be cancelled. Admittedly there has been an altercation leading to the
death of Ramkrishna due to the assault by Kanai with a pekhra. The dispute
was relating to cutting of bamboos from a bamboo grove to which both parties
claimed ownership. PW 2 is the wife of the deceased. PW 1 the defacto
complainant is the brother of the deceased. PW 16 is another brother of the
deceased.
Dr. Tarapada Ghosh (PW 20) who has examined Panchami Dolui, Tapan
Dolui, Debendra Nath Dolui, Balai Dolui, Kanai Dolui and Sankar Dolui, has
proved all the injury reports before the Court marked Exhibit 11 series. From
the said evidence and the injury reports it is found that the opinion of the
Doctor related to the injuries of Panchami is "fresh and grievous". It has come
before this Court that convict Kanai Dolui had first assaulted Panchami Dolui
and had caused the said injuries. The injuries of Tapan Dolui are also fresh
and grievous. The said injury was also caused by Kanai as seen from the
evidence on record. The injury sustained by Debendranath Dolui is simple
fresh and minor. Injury sustained by Balai Dolui is fresh and simple. Injury
sustained by Kanai Dolui was fresh and minor and Sankar Dolui was also
fresh and minor. PW 7 is Dr. Anil Kumar Bhowmick the Doctor who conducted
the post mortem over the body of deceased Ramkrishna. The opinion of the
Doctor as to the cause of death was due to hemorrhagic shock in case of sharp
cutting injury and it is homicidal and anti mortem in nature. This specific
evidence of this Doctor is as follows:-
"........The injury as found by him was sufficient enough in the
ordinary course of nature to death of a person.
This is called pekhra (The witness was shown one weapon out of
material Exhibit MAT-1). The injury as noticed on the dead body cannot
be caused by this pekhra, even if the impact of a struck of pekhra having
length and the breadth of this type (as the witness was shown) the injury
as noticed in the present case, cannot be caused....."
".......On being cross examined this witness has stated "the injury on
the neck of the dead body as noticed by him might be caused due to fall
upon some slightly curve sharp cutting weapon or instrument. Pekhra is
not a curved weapon......"
From the said evidence it is seen that the Doctor has categorically
identified MAT Exhibit 1 (a pekhra). All the witnesses in this case have also
stated that convict Kanai Dolui caused the assault with a pekhra. The pekhra
has been seized and marked MAT Exhibit 1. This witness has categorically
stated that the injuries as noted on the dead body (while conducting post
mortem) cannot be caused by this pekhra (MAT Exhibit 1) and has stated that
if assaulted with this pekhra (MAT Exhibit 1) such injury cannot be caused as
noticed. On being cross examined the Doctor has stated that injury on the neck
of the dead body might have been caused by slightly curved sharp cutting
weapon and pekhra is not a curved weapon. This evidence on record is in
contradiction to the oral evidence before the Court where all the witnesses have
stated that convict Kanai assaulted with a pekhra and a pekhra has also been
seized (MAT Exhibit 1) .
It has also come before the Court that the complainant's/deceased party
were cutting the bamboos and the convict's party was resisting the same.
Though the witnesses in this case are mostly related to each other and some
are public witnesses the evidence more or less is corroborative. Though Exhibit
3 shows that the complainant's party have got .06 decimals of land, Exhibit A
shows that the remaining .06 decimals of land was given to the predecessor of
the accused persons and a civil suit has been filed by the predecessor of the
accused persons against the complainant's party and the same has been
admitted by the complainant. The incident in this case occurred on 03.09.1996
(26 years back). From the injury report it is seen that no history of assault or
by whom has been noted in the general injury report. It has been clearly
proved before the Trial Court that convict Kanai assaulted deceased
Ramkrishna with a pekhra (weapon doubtful) on his neck causing his death on
the spot. Absolutely no contradiction is there in respect of the said evidence.
And the opinion of the said Doctor (PW 7) was that the injuries found on the
deceased were sufficient enough to cause death in ordinary course. As such
the oral evidence along with the medical evidence has proved that accused
Kanai hit the fatal blow causing the death of the Ramkrishna. Considering the
evidence on record it is found that accused Kanai was rightly found guilty for
offence punishable under Section 304 part-II IPC. As there was no direct
intention to cause death and the act was done with the knowledge that it was
likely to cause death. The Trial Court also rightly held that convict Kanai Dolui
was guilty of committing offence under Section 324 IPC in respect of Panchami
Dolui and others. Admittedly the presence of the other convicts along with
convict Kanai Dolui has also been clearly proved before the Trial Court and
their presence of being armed with deadly weapons at the time of occurrence
has also been proved and the Trial Court rightly held that all the convicts guilty
of offence punishable under Section 148 of the IPC. Regarding the role played
by convict Krishnapada in the incident in this case it has come before the
Court that at the time of altercation it was Krishnapada who caught
Ramkrishna from behind and convict Kanai Dolui gave the fatal blow. Though
it has come before this Court by way of oral evidence and also that the said
convict was detained in custody for a certain period and also considering the
fact that this is a case were the incident occurred 26 years back, this Court is
of the view that though the conviction in respect of all the five accused persons
has been rightly arrived at by the Trial Court but a modification in the sentence
given to the convicts can be considered by this Court.
The sentence given by the Trial Court is as follows:-
Sl No. Name Under Section Punishment
1 Kanai Dolui 324 IPC S.I. for 2 years and
fine of Rs. 3000 i.d.
S.I. for 3 months.
114/304 by Part-II S.I. for 7 years and
IPC fine of Rs. 10,000 i.d.
S.I. for 1 year.
S.I. for 2 years and
148 IPC fine of Rs. 2000 i.d.
S.I. for 2 months.
2 Krishnapada 114/304 part-II S.I. for 7 years and
Dolui fine of Rs. 10,000, i.d.
S.I. for 1 year.
148 IPC S.I. for 2 years and
fine of Rs. 2000 i.d.
S.I. for 2 months.
3 Balai Dolui 148 IPC S.I. for 2 years and
fine of Rs. 2000 i.d.
S.I. for 2 months.
4 Nemai Dolui 148 IPC S.I. for 2 years and
fine of Rs. 2000 i.d.
S.I. for 2 months.
5 Achinta Dolui 148 IPC S.I. for 2 years and
fine of Rs. 2000 i.d.
S.I. for 2 months.
From the conviction and sentence it is seen that Section 114 IPC is not
applicable in respect of convict Kanai Dolui.
Sentence is modified in appeal as follows:-
Sl No. Name Under Section Punishment
1 Kanai Dolui 324 IPC S.I. for 2 years and
fine of Rs. 3000 i.d.
S.I. for 3 months.
304 by Part-II IPC S.I. for 7 years and
fine of Rs. 10,000 i.d.
S.I. for 1 year.
148 IPC S.I. for 2 years and
fine of Rs. 2000 i.d.
S.I. for 2 months.
2 Krishnapada 114/304 part-II S.I. for 5 months and
Dolui fine of Rs. 25,000, i.d.
S.I. for 1 year more.
148 IPC Fine of Rs. 5,000 i.d.
S.I. for 1 month.
3 Balai Dolui 148 IPC Fine of Rs. 5,000 i.d.
S.I. for 1 month.
4 Nemai Dolui 148 IPC Fine of Rs. 5,000 i.d.
S.I. for 1 month.
5 Achinta Dolui 148 IPC Fine of Rs. 5,000 i.d.
S.I. for 1 month.
Fine if realized, 80% is to be paid to the family of deceased Ramkrishna
(victim).
Period of detention, if any, undergone by the appellant during
investigation, enquiry and trial shall be set off against the substantive sentence
imposed in terms of Section 428 Cr.P.C.
All sentences to run concurrently.
Bail bond of the appellants are cancelled. The appellants are directed to
surrender forthwith and serve out the remainder of their sentence (if any)
within one month from date.
In the event they fail to do so, trial court shall take appropriate steps to
apprehend them and execute the sentence in accordance with law.
The appeal is, allowed to the aforesaid extent. Conviction is upheld
but sentence is modified to the extent stated above.
Let a copy of this judgment along with the lower court records be sent
down to the trial court immediately.
Urgent Photostat Certified copy of this Judgment, if applied for, be
supplied expeditiously after complying with all necessary legal formalities.
(Shampa Dutt (Paul), J.)
