Bisakha Majumder vs The State Of West Bengal
2023 Latest Caselaw 2889 Cal

Form No.J(1)

                        IN THE HIGH COURT AT CALCUTTA
                        CRIMINAL APPELLATE JURISDICTION


Present:

The Hon'ble Justice Tirthankar Ghosh


                             CRA(SB) 69 of 2022


                             Bisakha Majumder
                                   versus
                          The State of West Bengal


For the Appellant        : Mr. Swapan Kumar Mallick,
                           Mr. Kazi M. Rahaman.
                           Mr. Satadru Lahiri
                           Ms. Sudeshna Das, Advocates

For the State            : Mr. Saswata Gopal Mukherji, ld. PP
                           Mr. Sandip Chakraborty,
                           Mr. Saryati Datta, Advocates


Heard On            :    11.04.2023, 25.04.2023

Judgement On        :    25.04.2023



Tirthankar Ghosh, J. :


        The present appeal has been preferred against the judgment and

order of conviction and sentence dated 27.04.2022 and 28.04.2022

passed by the Learned Additional District & Sessions Judge, Fast Track

Court (1st), Raiganj, Uttar Dinajpur in Sessions Trial No.06/15 arising
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out of Sessions Case No.823/14 wherein the learned trial court was

pleased to convict the appellant under Sections 448/326/307 of IPC and

sentenced her as follows:

      (1)   Simple imprisonment for 3 months and fine of `1,000/- i.d.

            to suffer further imprisonment for 1 month for offence

            punishable under Section 448 IPC.

      (2)   Simple imprisonment for 5 years and fine of `2,000/- i.d. to

            suffer further imprisonment for 6 months for offence

            punishable under Section 326 IPC.

      (3)   Simple imprisonment for 5 years and fine of `2,000/- i.d. to

            suffer further imprisonment for 6 months for offence

            punishable under Section 307 IPC.

            By the same order learned trial court was pleased to observe

            that all the sentence was run concurrently.

      The genesis of the case was on the basis of a complaint lodged by

Nirmal Roy with the Officer-in-Charge, Hemtabad Police Station, Uttar

Dinajpur where he alleged that on 04.04.2023 his wife Minati Roy was

discussing with the accused about the money which she owed and the

accused Bisakha Majumder assured her that she would come to her

house with the money.       His wife returned home and on that day at

around 12 noon the accused planned not to return the money and came
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to his house with a cleaver (daw) secretly covering with saree and at the

time of discussing about the said money the accused took out the daw

and assaulted on her neck with an intention to kill her. When his wife

tried to save herself the accused continuously assaulted her on different

parts of the body and while screaming she fell down on the ground.

Hearing such hue and cry a neighbour viz Banosree Biswas rushed to

the spot and the accused thereafter ran away with the cleaver (daw). At

that time the complainant was not present at home and neighbouring

people took his wife to Kaliaganj Hospital where doctor examined her

and immediately referred to Raiganj District Hospital. His wife is under

medical treatment at Raiganj District Hospital and is struggling with her

life. The complainant further stated that he is working in a private firm

at Guwahati and that is why there is delay in informing the incident.

        On the basis of such information being sent to the Officer-in-

Charge, Hemtabad Police Station Case No.55/13 dated 06.04.2013

under Sections 447/324/326/307 IPC was registered for investigation.

On conclusion of investigation the investigating officer submitted charge-

sheet    under   Sections    447/326/307      IPC    against   the      sole

accused/appellant. The case was thereafter committed to the court of

sessions and finally it was transferred before learned trial court on or

about 10.12.2014. Learned trial court was pleased to frame charges
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under Sections 448/324/326/307 IPC.       The contents of charge were

read over to the accused which was not narrated and claimed to be tried.

      The prosecution in order to prove its case relied upon 9 witnesses

being PW-1, Nirmal Roy, the complainant and the husband of the

injured; PW-2, Minati Roy, the injured; PW-3, Dhiren Barman, a co-

villager; PW-4, Tapan Biswas, a co-villager; PW-5, Rabin Mondal, a co-

villager; PW-6, Prasanta Biswas, a co-villager; PW-7, Abdul Jabbor, ASI

of Police in Hemtabad Police Station; PW-8, Krishnendu Das, Officer-in-

Charge of Hemtabad Police Station; PW-9, Dr. Somnath Chatterjee.

      In order to prove its case the prosecution also relied upon 8

documents which included the written complaint, a seizure-list, formal

FIR, rough sketch map of the place of occurrence along with index, bed

head tickets etc. However, the defence did not produce any witness and

only relied upon the evidence which was adduced by the prosecution

particularly the cross-examination and the facts on which prosecution

witnesses were confronted.

      PW-1, Nirmal Roy in his evidence before the court narrated the

incident in the same manner as he had lodged the complaint.         The

written complaint pursuant to his identification was marked as Ext.1

and he also identified the accused Bisakha Majumder in court.
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      PW-2, Minati Roy is the injured witness who deposed that on

04.04.2013

at about 12 noon, she asked Bisakha Majumder to pay dues

of Rs.10,000/- while she was going through road. The accused

answered that she would go to her house later. Then the accused came

to her house and asked the injured to calculate the quantum of dues.

The accused thereafter took out a daw from her waist under the saree

and blew the same on her neck, when she tried to resist her by lifting

her left hand she sustained injury on her left hand and upper side of

elbow. Thereafter, she also sustained injury in the right side of neck and

back. On raising hue and cry, one Banosree Biswas came to her house

and saw the accused and at that time the accused left her house and

rushed towards a bamboo bush for escaping. Other co-villagers took her

to Raiganj District Hospital for treatment. At the time the incident took

place no inmates were present. Her husband was working at Guwahati

and he was informed over phone and she was admitted at Raiganj

District Hospital. On the following day of incident her husband arrived

there and came to know regarding the incident from her and thereafter

he lodged the complaint against Bisakha Majumder.

PW-3, Dhiren Barman, a co-villager deposed that he heard hue

and cry that Bisakha Majumder injured Minati Roy in her house and

fled away. He rushed to the place of occurrence and found Minati Roy in

bleeding condition and there were injuries on her neck, right side, cut

injury on her right hand and also on her back side. He deposed that

Rabin Mandal and Prasanta Biswas brought the injured to Kaliaganj

Hospital from her house by a local vehicle. She was admitted at the

Kaliaganj hospital and thereafter transferred to Raiganj District Hospital.

At the relevant point of time when the incident took place, her husband

was in Guwahati who was informed by Subrata Biswas over telephone.

The witness was a signatory to the seizure list dated 06.04.2013. His

signature on being identified was marked as Ext.2. He was also shown

daw which was seized and marked as Mat. Ext.1.

PW-4, Tapan Biswas, a co-villager, who deposed that at the time

of the incident he was having his bath in the pond which was situated in

between the house of Bisakha Majumder and Nirmal Roy. On hearing

hue and cry of Minati Roy, he rushed to her house and asked her as to

what happened, in reply the injured stated that she was assaulted with

daw by Bisakha and as a result there were bleeding injuries. The witness

took the injured Minati Roy to hospital. The injured was first shifted to

Kaliaganj Hospital and thereafter she was shifted to Raiganj District

Hospital. The witness also signed the seizure list dated 06.04.2013 by

which the daw was seized. He identified his signature in the seizure list

which was marked as Ext.2/1 and also the daw which was marked as

Mat.Ext.1.

PW-5, Rabin Mandal narrated the incident in the same manner as

PWs 3 and 4. The witness also stated that he helped the victim to be

admitted in Kaliaganj Hospital and thereafter she was shifted to Raiganj

District Hospital.

PW-6, Prasanta Biswas narrated the incident in the same manner

as PWs 4 and 5. He also stated that he accompanied the person who

took the injured to Kaliaganj Hospital for treatment and identified the

accused in court.

PW-7, Abdul Jabbor is ASI of Police of Hemtabad Police Station

who deposed that on 06.04.2013 a complaint was lodged by Nirmal Roy

with the Officer-in-Charge, Hemtabad Police Station. The Officer-in-

Charge, Hemtabad Police Station endorsed the case to him for

investigation and he prepared the formal FIR and identified the signature

of the OC and the same was marked as Ext.3 and the formal FIR was

marked as Ext.4. The witness prepared rough sketch map which was

identified and marked as Ext.5/1. The witness also deposed that he

recorded the statements of available witnesses and also seized the

offending weapon/daw and the seizure list which was prepared by him

was marked as Ext.6. On 07.04.2103 he arrested the accused Bisakha

Majumder and thereafter collected injury report of Minati Roy from

Raiganj District Hospital. He identified the accused in court and

submitted charge-sheet under Sections 447/326/307 IPC against the

accused.

PW-8, Krishendu Das is SI of Police at Islampur PS who at the

relevant time was Officer-in-Charge of Hemtabad Police Station. The

witness deposed that on receipt of complaint, Hemtabad PS Case No.55

of 2013 dated 06.04.2013 was registered for investigation. He identified

the endorsement in the written complaint along with the signature and

seal in written complaint which was marked as Ext.8. He also identified

the formal FIR which was marked as Ext.4/1.

PW-9, Dr. Somnath Chatterjee deposed that on 04.04.13 one

patient namely Minati Roy was admitted in Raiganj District Hospital

under him and he started her treatment. He attended the patient many

times during her stay in Raiganj District Hospital. Firstly, she was

diagnosed deep cut on her neck and she stayed in hospital for 8 days.

She was conscious to make statement. The injuries were over

sternomastoid, trapezius muscle. Three injuries were found, one was 12

cm X 3 cm X muscle depth, 2nd one was 3 cm X 2 such over arm and 3rd

one was 4 cm over back. All injuries were repaired under general

anesthesia. In cross-examination doctor categorically pointed out that

such type of injuries cannot occur when one falls on the ground.

Mr. Swapan Kumar Mallick, learned advocate appearing on

behalf of the appellant submits that in the present case, the evidence of

the victim P.W.2 namely Minati Roy is not believable and there is no

corroboration to her version. There was enmity between the families for

which the appellant has been falsely implicated in the instant case and

the only person who could have seen the incident is one Banosree

Biswas who was never produced by the prosecution before the court.

Learned advocate further submits that the nature of the evidence

so relied upon in the present case do not inspire confidence as there are

no corroboration to the statement of the injured, PW-2 and no materials

are also surfacing from the injury report so relied upon by the

prosecution. PW-9, Dr. Somnath Chatterjee has also deposed that the

history of the incident is not appearing in the injury reports.

Learned advocate for the appellant has relied upon a decision of

Supreme Court in the case of Amar Singh -vs- State (NCT of Delhi)

reported in (2020) 19 Supreme Court Cases 165.

Mr. Mukherji, learned Public Prosecutor appearing for the State

opposes the contentions and has submitted that the injured was

admitted in the hospital for 8 days. The injuries sustained by PW-2 was

vividly described by the doctor in his evidence. The nature of injuries

complained are on the vital parts of the body which do raise a

presumption regarding the manner in which the offence has been

committed and the intention associated with the same.

It has also been submitted that there is no scope for not

disbelieving the evidence of PW-2 who happens to be an injured witness

and mere absence of eye-witnesses cannot in any manner rule out the

possibility of an incident of injury. According to the learned Public

Prosecutor, State supports the judgement and the order of conviction

and sentence so imposed by the learned trial court.

I have considered the submissions advanced on behalf of the

learned advocate for the appellant as well as the State and on an

appreciation of the same, I find that the injured prosecution witness no.

2 and the accused/appellant were neighbours. The factum that there

were dues which were to be returned and their relation on such issues

cannot be ruled out. The witness was cross-examined but a routine

suggestion was only made regarding the previous enmity but there is

nothing on record from which it is found that there is any scope of false

implication as immediately after the incident on hearing hue and cry,

number of co-villagers particularly PWs 3,4,5 & 6 appeared at the place

of occurrence and in fact some of the witnesses also saw the

accused/appellant running away towards the bamboo bush after the

incident.

Mr. Mallick, learned advocate for the appellant in order to

counter such contentions definitely pointed out regarding some

inconsistency of non-production of the exercise book where the accounts

were kept or the 'Daw' with which PW 2 was injured being not shown to

her.

In the background of the case, I hold that the same are minor

inconsistencies as there are subsequent seizures and the seizure list

witnesses were not cross-examined on such point.

So far as the judgement relied upon by Mr. Mallcik, learned

advocate for the appellant in Amar Singh(Supra), I find that the case was

under Section 302 read with Section 34 of the Indian Penal Code

wherein the eye-witness was disbelieved. Now, the cited case was

factually different as the present is a case where the injured has

narrated her version regarding the manner in which she sustained the

injuries, whereas in the cited case it was a narration of the eye-witness.

As such, the referred judgement do not come to the aid of the present

appellant.

Having regard to the totality of the circumstances particularly

the injuries and that the incident occurred within a close proximity of

time when PW-2 had asked for return of the money, I am of the view that

there was an instinctive anger which took place at the relevant point of

time which compelled the accused/appellant to inflicts such injuries,

but the same cannot be said to be for the purposes of attempting to

murder or kill the victim/injured. Consequently, interference is called

for in the judgement of order of conviction and sentence which is under

challenge, the conviction and sentence under Section 307 IPC is hereby

set aside.

So far as the offences under Sections 448 and 326 IPC are

concerned, the same is hereby affirmed.

Having considered the fact that the appellant happens to be a

lady and the incident occurred on a spur of the moment, I am of the view

that the sentence so imposed under Section 326 of the Indian Penal

Code be reduced to a period of one year. Thus, the conclusion is

summarized as follows:-

1. The appellant is acquitted under Section 307 IPC;

2. The appellant is convicted under Sections 448/326 IPC;

3. The sentence so imposed by the learned trial court is modified

in respect of Section 326 IPC to a period of one year of Simple

Imprisonment.

It has already been directed by the trial court that the sentences

would run concurrently, it is further directed that if the appellant has

suffered in course of investigation or during the trial or the pendency of

the appeal, such period of detention behind the bar should be set off

from the sentence so imposed.

Thus, CRA (SB) 69 of 2022 is partly allowed.

The appellant is on bail, her bail bond stands cancelled and she

is directed to surrender and serve out the remaining part of the

sentence.

Pending connected application, if any, is consequently disposed

of.

Department is directed to send back the lower court records along

with a copy of this judgement immediately to the learned trial court.

All parties shall act on the server copy of this judgement duly

downloaded from the official website of this Court.

Urgent photostat certified copy of this judgement, if applied for, be

given to the parties upon compliance with all requisite formalities.

(Tirthankar Ghosh, J.)