Purnachandra Maity vs State Of West Bengal
2023 Latest Caselaw 2754 Cal

Sl. No. 89




                IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                  And
The Hon'ble Justice Ajay Kumar Gupta

                            C.R.A. 362 of 2014

                              Purnachandra Maity
                                      -Vs-
                             State of West Bengal


For the appellant            : Mr. Partha Sarathi Bhattacharya


For the State                : Mr. Madhusudan Sur, learned APP
                               Mr. Manoranjan Mahata


Heard on                     : 20.04.2023

Judgment on                  : 20.04.2023

Joymalya Bagchi, J. :-

         The appeal is directed against judgment and order dated

29.03.2014

and 31.03.2014 passed by learned Additional Sessions

Judge, Fast Track Court-1, Tamluk, Purba Medinipur, in Sessions Case

No. 56(3)/2009 corresponding to Sessions Trial No. 35(04)/2013

convicting the appellant for commission of offence punishable under

Section 341 of the Indian Penal Code and sentencing him to suffer simple

imprisonment for life for the offence punishable under Section 302 of the

Indian Penal Code and to pay a fine of Rs.10,000/- and to suffer simple

imprisonment for six months more and also sentenced with rigorous

imprisonment for ten years for the offence punishable under Section 307

of the Indian Penal Code and to pay a fine of 10,000 to suffer simple

imprisonment for six months more. All the sentences to run concurrently.

Prosecution case as alleged against the appellant is to the effect

that appellant was the private tutor of Mousumi, a 16 year old girl. He

gave indecent proposal to her. Mousumi informed to her mother.

Appellant threatened Mousumi with dire consequences. On 26.12.2008

at 6.30 a.m. Mousumi was proceeding with her father Durgapada Bera

(PW 2) to Baroj. On the way appellant restrained them. He dragged

Mousumi away and struck her with a hansua like Katari. When

Durgapada protested he was assaulted. They fell down at the spot with

bleeding injuries. Appellant fled from the spot with the weapon. Local

people came to the spot. They shifted Mousumi and her father Durgapada

to Erasal hospital where they were treated. Thereafter Mousumi was

shifted to Tamluk hospital. As her condition was serious she was shifted

to NRS hospital where she expired on the next date. In the meantime

Sudhir Chandra Bera (PW 1), grandfather of the Mousumi lodged written

complaint resulting in Chandipur Police Station Case No. 132 dated

26.12.2008 under Sections 341/354/326/307 of the Indian Penal Code.

After the death of Mousumi, Section 302 of the Indian Penal Code was

added. During investigation investigating officer (PW 31) arrested the

appellant. On his showing weapon of offence i.e. katari was recovered.

Charge-sheet was filed and charges were framed under Sections

341/307/302 of the Indian Penal Code. Appellant pleaded not guilty and

claimed to be tried. 31 witnesses were examined. On an analysis of the

evidence on record, learned trial Judge by the impugned judgment and

order convicted the appellant and sentenced him.

Learned Counsel for the appellant submits prosecution has not

been able to prove the motive to commit the crime. Apart from relations

no witness deposed that the appellant had given indecent proposal and

had threatened Mousumi. PW 2 (Durgapada Bera) is the sole eye-witness.

He stated that the appellant assaulted him and his daughter with a

katari. Medical officers i.e. PWs 26, 28 and 30 who treated Mousumi

found lacerated wounds and depressed fracture. They opined that

fracture was caused due to blunt substance. Hence, medical evidence

does not support the ocular version of assault by a sharp cutting weapon

i.e. katari. Prosecution case suffers from inconsistencies and is liable to

be rejected. He prays for acquittal.

Learned Counsel for the State submits relations of Mousumi i.e.

PWs 1, 2, 4 and 20 stated appellant had given indecent proposal.

Mousumi did not favourably respond and informed her mother. Appellant

nursed a grudge against her. On the fateful day he assaulted Mousumi

and her father brutally. Hearing cries local people came to the spot and

saw the appellant fleeing away with the katari. Thereafter Mousumi and

her father PW 2 were shifted to the hospital. Unfortunately Mousumi

succumbed to her injuries on the next day. Medical opinion particularly

that of PM doctor (PW 29) corroborates the eye-witness version.

Prosecution case is proved beyond doubt and is liable to be dismissed.

PW 2 (Durgapada Bera) is the father of the deceased and an eye-

witness. He deposed on 26.12.2008 at 6.30a.m. he along with his

daughter Mousumi was going to the house of her private tutor. Suddenly,

the appellant accosted them and dragged Mousumi away from the path.

Mousumi tried to free herself. She raised alarm. Appellant brought out a

hansua like katari and dealt blow on her head, cheek and hands.

Mousumi fell down. When PW 2 intervened he was also assaulted on

hand and head.

Evidence of PW 2 is corroborated by the local people. PW13

(Chandra Mohan Manna) appeared at the spot and gave first aid. Local

people shifted to the hospital in a motorized van rickshaw. After primary

treatment, they were sent to Purba Medinipur Hospital at Tamluk. He was

hospitalised till 7.1.2009. Mousumi was shifted to a hospital in Kolkata

where she expired.

Local witnesses have corroborated PW 2.

PW3 (Srikanta Sahoo) deposed hearing hue and cry he came to the

spot and saw the appellant fleeing away with a katari in hand. He found

Mousumi and Durgapada lying at the spot with bleeding injuries.

Subsequently, they were shifted to hospital.

PW5 (Gurupada Das) deposed in similar lines.

PW 9 (Basudeb Patra) deposed he came to the spot and saw the

appellant running away with a katari. Chandra Mohan treated the

victims. He sent Durgapada and Mousumi in a van rickshaw owned by

Dipak Kumar Maity (PW16).

PW 10 (Ranjit Kumar Das) and PW12 (Sanatan Maity) corroborated

PW 9.

PW 13 (Chandra Mohan Manna) a quack doctor deposed he came to

the spot and bandaged the wounds of Mousumi and Durgapada.

PW16 (Dipak Kumar Maity) deposed he brought the van rickshaw

and Durgapada and Mousumi were shifted in the said rickshaw to

hospital. PW 17 (Gopal Bera) and PW 14 (Sandhya Sahu) corroborated his

version.

PW 31 (Amit Hati), Investigating Officer seized the gum boot,

sandal, bloodstained earth from the place of occurrence.

Evidence of the aforesaid witnesses clearly establish that on

26.12.2008 at 6.30 A.M. while Durgapada and his daughter Mousumi

were proceeding down the road, appellant had assaulted them brutally

with a katari causing injuries. Initially, they were treated by a quack

doctor (PW 13) and then shifted to Erasal BPHC. Thereafter, Mousumi

was treated at Purba Medinipur District Hospital and at NRS Hospital

where she breathed her last.

PW 30 (Dr. Sutapa Haldar) treated Mousumi and Durgapada at

Erasal BPHC. She found the following injuries on Mousumi:-

"1. About 8 cm Lacerated injury over the scalp.

2. About 8-9 cm of Lacerated injury in the left side of face.

3. Pulse rate was 80/min, B.P. was 100/60 mm. Hg.

4. I gave primary treatment to her such as, pressure bandage in the wound, Injection T. Toxide, Injection Diclofencee, Injection Rantac,

5. I gave one bottle IV fluid (Ringer lactate) and thereafter referred the case before Tamluk Dist. Hospital;"

She also found the following injuries on Durgapada:-

"1. About 5 cm of Lacerated wound over the scalp.

I have him treatment such as, pressure bandage at the wound, injection T.toxide, Inj. Diclofence, Inj. Rantac and I.V. fluid (Ringer Lactat) and I also referred him to Tamluk Dist. Hospital."

She proved the medical reports (Exts.11 and 12).

PW 26 (Dr. Dipak Kumar Bhattacharyya) was attached to Purba

Medinipur District Hospital. He deposed on 26.12.2008 Mousumi was

admitted in the said hospital. On 27.12.2008 she was advised to be taken

to another hospital for better treatment. She was not responding to verbal

command. There was cerebral contusion at left fronto parietal and

temporal bone with soft tissues swelling. He proved the advisory report

(Ext.9). He also proved the medical documents at the hospital (Ext.35

series).

In cross-examination, he opined blunt object may cause depressed

fracture at the point of impact.

PW 28 (Sakshi Gopal Saha) treated Mousumi at NRS Medical

College and Hospital. He deposed she was admitted on 26.12.2008. She

was unconscious. He deposed patient's brother stated Purna Chandra

Maity i.e. the appellant had assaulted her with a katari. She was

vomiting. Her entire head was bandaged. He proved the report. This

witness also reiterated that blunt object may cause depressed fracture.

PW 29 (Swapan Kumar Bhowmick) is the post mortem doctor. He

noted the following injuries:-

"1. Stitched up injury-5 ½", placed obliquly over the region of left cheek, left frontal and left temporal region starting at a level of 1 ½ "below left eye brow and 2"in front of left tragus of ear.

2. One stitched up wound 3 ½"placed more or less in saggital section over left frontal and parietal region, 3¼"above tragus of left ear and 2" left from lateral part of left brow;

3. One stitched up injury-5"plaed more or les in saggital section over let frontal and parietal region 1 ½" lateral from lateral end of let eye brow and 5"above tragus of left ear.

4. Stitched up injury 3/4" placed transversely with little obliquely over the end of middle phalysx of middle finger of left and with loss of separated part.

5. Stitched up injury ½"over post-aspect of middle phalynx of ring finger of left hand.

6. I.W. ½" X ¼" XMS. over post-aspect of middle phalynx of index finger of left hand."

He opined the stitched up injuries were chop wounds with injury

nos.1, 2 and 3 showing incised cut upto both table of small bone and

underlying laceration of meninges and EVC blood. Injury no.6 is a levelled

cut incised wound. All the injuries showed evidence of vital reaction. He

opined death was due to the aforesaid injuries ante mortem and

homicidal in nature.

Relying on the findings of the medical officers at Tamluk and NRS

Medical College and Hospital (PWs26 and 28) that the depressed fracture

was by a blunt object, Mr. Partha Sarathi Bhattacharyya strenuously

argued the medical opinion is at variance with the ocular version of the

eye witness. PW2 stated that the victim was assaulted by a hansua like

katari which is a sharp cutting weapon. Depressed fracture could not

have been caused by such weapon.

I am unable to accept such contention. A hansua/katari has a

sharp cutting edge and a flat side. Post mortem doctor found a number of

incised wounds on the body of the victim. This shows that the appellant

had indiscriminately attacked Mousumi both with the sharp edge and flat

surface of the weapon. Assault by the flat surface of the Katari would

have an impact akin to a blunt weapon. As a result, in addition to incised

cut wounds depressed fracture of the scalp was caused. It is trite law

unless ocular version is wholly improbabilised by medical evidence, the

former ought to be accepted. (See Kamaljit Singh vs. State of Punjab1 and

Ramanand Yadav vs. Prabhu Nath Jha and Others2). No such situation

has arisen in the present case.

AIR 2004 SC 69 (para 8)

AIR 2004 SC 1053 (paras 17 & 18)

Motive to commit the crime has also been proved by the relations of

the deceased Mousumi. Her grandfather (PW 1), parents (PWs 2 and 4)

and brother (PW 20) deposed the appellant was her private tutor. He

made indecent proposal. Mousumi complained to her mother. Her mother

in her turn informed her husband. This enraged the appellant and he

threatened Mousumi. Incident involved improper behaviour towards a

teenaged girl. Naturally, the relations did not disclose the matter to

outsiders lest it would embroil the girl in controversy.

Under such circumstances, absence of evidence from local

witnesses cannot cast doubt on the version of relations regarding motive

of crime.

FIR was promptly registered by the grandfather (PW1) and history of

assault disclosed by the brother of the victim at the hospital also

implicates the appellant. Investigating Officer collected bloodstained

earth, gum boot and sandal from the place of occurrence. On the showing

of the appellant hansua like katari was also recovered. PWs 8 and 13 are

witnesses to the said recovery. These circumstances corroborate and lend

credence to the version of the eyewitness (PW 2) and establish the

prosecution case beyond doubt.

Conviction and sentence of the appellant are upheld.

The appeal is, accordingly, 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 Section 428 of the Code of Criminal

Procedure.

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 upon completion of all formalities.

I agree.

(Ajay Kumar Gupta, J.)                            (Joymalya Bagchi, J.)



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