Kaliram Hembram vs State Of West Bengal
2023 Latest Caselaw 4971 Cal

                                   1


              IN THE HIGH COURT AT CALCUTTA
                Criminal Revisional Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                     C.R.A. No. - 65 of 1984
                       IN THE MATTER OF

                     Kaliram Hembram
                               Vs.
                    State of West Bengal.

For the Appellant            : Mr. Bibaswan Bhattacharya, Adv.,
                               Ms. Bindia Paul, Adv.,


For the State                : Mr. Binoy Kumar Panda, Adv.,
                               Mr. S. Bhakat, Adv.




Judgment on                    :       11.08.2023



Subhendu Samanta, J.

The instant appeal is preferred against the judgment of

conviction and sentence dated 06.02.1984 passed by the

Additional Sessions Judge, Medinipur in Sessions trial No.

XXVIII of November 1983 convicting the present appellant to

sentence rigorous imprisonment for 07 years is being found

guilty u/s 304(II) of IPC.

The brief fact of the prosecution case is that the deceased

Raghunath was the father of the present appellant, the

complainant (PW 1) is his step-mother and PW 4 is his step-

sister. On 25th Jaistha 1384 BS, corresponding to 12.05.1982

at about 6/7 p.m. In the evening the accused attacked

Raghunath with Lathi, Mugur and Pirah and stuck him with

those objects causing serious injuries on his present as

Raghunath refuses to transfer his property to the accused as

demanded by him. PW 1 tried to resist the accused but the

accused also assaulted her. At the time PW 4 was present

there, they raised alarm, some of the neighbours came there on

hearing the said alarm but the appellant fled away with the

Mugur in his hand. The neighbours came to the P.O, thereafter

Raghunath was first taken to Debra Hospital and therefrom to

Medinipur Sadar Hospital wherein Raghunath succumbed

injuries on the next day. One UD case being no. 79 of 1982

dated on 13.05.1982 in connection with the death of the

Raghunath was started. The de-facto complainant, due to pain

upon all over her body could not go to the P.S immediately

after the incident, on 15.05.1982 at 18:15 Hrs. she went to the

P.S and lodged the FIR before the Debra P.S being case no. 8

dated 15.05.1982.

After investigation, police submitted charge-sheet u/s

304 Part 1 IPC against the present appellant. The appellant

sent up for trial. The appellant pleaded not guilty and claimed

to be tried.

During the trial the prosecution has produced 09

witnesses but the defence has examined none. On hearing the

evidences and after perusing the materials on record the

Learned Sessions judge, has passed the impugned order of

conviction and sentence against the present appellant finding

him guilty for commission of an offence punishable u/s 304

Part 2 of IPC.

Hence this appeal.

Learned Advocate for the appellant submitted before this

court that the impugned judgment of conviction suffered

material irregularities. The Learned Sessions Judge has failed

to appreciate the facts and circumstances of this case and

came to an erroneous finding. The PWs contained material

contradictions between each other and the conviction on the

basis of such contradictory depositions cannot be sustained.

The doctor of the primary health centre was not examined

where the deceased was first admitted after such alleged

assault. There are inordinate delay in lodging the FIR and the

prosecution has no sufficient explanation to that effect. Thus

the case of prosecution cannot be said to be proved beyond

reasonable doubt. The PW 1 has stated the wrong month in her

deposition thus her deposition cannot be believed; the PW 1

has stated the names of the villagers and the neighbours who

was assembled at the time of alleged assault by the appellant

but none of them was examined by the prosecution or no

villagers or neighbours supported the prosecution case. At this

juncture, the order of conviction passed by the Learned

Sessions Judge is erroneous. The delay in lodging FIR has

purposefully developed the case by the PW 1 herself. There is

no indication of 'Mugur' in the FIR but subsequently during the

evidence of PW 1 she stated that the accused /appellant has

assaulted the deceased with the 'Mugur'. Such type of

development had occurred purposefully only to falsely

implicate the present appellant. It is the case of the

prosecution that the appellant has assaulted PW 1 at the time

of alleged incident, but there no medical certificate or

prescription to justify the said case. The PW 1 has stated

herself to be the sole eye witness of the incident but her

statement was severally contadicted by other PWs. The

conviction on the basis of evidence PW 1 in this case is not at

all justified. The defect of the prosecution case was also noticed

by the Learned Sessions Judge at the time of scanning the

seizure list, but in- stead of which the illegal order of conviction

was passed. The close neighbour, whose names was stated by

the PW 1 did not supported the prosecution case.

Learned Advocate for the appellant further argued that it

would be appeared from the entire facts of the case that the

appellant brought his father to the hospital if the appellant is

the assailant, he cannot accompany her father to the hospital.

The material exhibit which were cited to be the weapon of the

assault such as Lathi, Mugur, Pirha are the household articles

which are available in all houses so it cannot be said that this

specific articles were used by the appellant to cause assault

upon the person of the deceased. He further argued that the

case of the prosecution is full of contradictions so the instant

case cannot be said to be proved beyond of reasonable doubt.

So he prayed for acquittal.

Learned Advocate for the state submitted before this

court that the material exhibits which were used in this case as

a weapon is actually seized from the house of the deceased.

The nature of the weapon may occur puncture wounds, the

doctor who appeared before the Learned Sessions Judge PW 9

has noticed the puncture wounds over the vital part of the

body of the deceased. The nature of injury suggests there are

several blows of such blunt weapons upon the deceased. The

intention of assault was very much there. As the appellant

forces the deceased to transfer his entire property in the name

of the appellant. The fact suggests there are other

brothers/legal heirs of the deceased. On demise of the

deceased all legal heirs would be entitled to get the property;

thus the appellant tried to transfer the entire property in his

name. The case of the prosecution was sufficiently proved and

the Learned Sessions Judge has considered the each and every

pros and cons of the prosecution case and thereafter he came

to opinion that the accused/ appellant has committed an

offence punishable u/s 304 part II of IPC. there is no perversity

in the said judgment.

Heard the Learned Advocate perused the materials on

record also perused the evidences adduced before the Learned

Sessions judge and the impugned judgment of conviction

passed by the Learned Sessions Judge.

It appears to me that the charge has been framed against

the appellant u/s 304 Part 1 of the IPC for commission of

offence of culpable homicide not amounting to murder. The

prosecution has adduced 09 witnesses amount them PW 1, de-

facto complainant and PW 4 was cited as eye witness. I have

specifically perused the evidence of PW 1 and PW 4. The PW 1

is the FIR maker who deposed that her husband was assaulted

mercilessly by her step-son i.e. the appellant on the alleged

date of incident. There may have some contradiction of the FIR

and the deposition of PW 1 but the fact of witnessing the

alleged incident of assault could not be shaken during her

cross-examination. PW 4 is the step sister of the appellant who

also deposed that she witnessed the incident. The statement of

PW 4 during her cross- examination is generally corroborated

the prosecution case.

P.W. 9 is the doctor who conducted post mortem over the

dead body of the deceased. The doctor has found several

injuries at the vital area of the body of the deceased i.e. all in

the head and face portion. The injuries are stated to be caused

by used of blunt weapons. In the instant case actually the

blunt weapons that is the Mugur, Lathi, and Pirah made of

wood were material exhibits. The injury as reflected in the

person by the deceased cannot be sustained by falling over

some wooden log in drunken condition; as suggested by the

defence.

In considering the delay for lodging the FIR the Learned

Sessions Judge is of opinion that the explanation of the

prosecution and considering the attending circumstances the

delay is not fatal to the prosecution case. I find the observation

of the Learned Sessions Judge on that score is justifiable.

Let me see whether the order of conviction passed by the

Learned Sessions Judge is justifiable in the facts and

circumstances of this particular case. Section 304 of IPC is set

out as follows---

304. Punishment for culpable homicide not amounting to

murder - whoever commits culpable homicide not amounting

to murder, shall be punished with imprisonment for life, or

imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine, if the act by

which the death is caused is done with the intention of causing

death, or of causing such bodily injury as is likely to cause

death/or with imprisonment of either description for a term

which may extend to ten years, or with fine, or with both, if the

act is done with the knowledge that it is likely to cause death,

but without any intention to cause death, or to cause such

bodily injury as is likely to cause death.

The charge was framed u/s 304 part I IPC, i.e. the

assailant must have an intention to cause death or to cause

such bodily injury as is likely to cause death. The Part II of

Section 304 indicates that the assailant may have the

knowledge that such fatal injury may likely to cause death but

he had not any intention to cause death.

In this particular case though the charge has been

framed u/s 304 part I of IPC but considering the facts and

circumstances of this case and particularly considering the fact

that the appellant has visited her father at hospital after such

incident proves that the appellant had no intention to cause

death to his father. Though the appellant has visited the

hospital but at the time the offence u/s 304 part 2 has already

been committed by him.

Under considering the entire materials it is to be

considered whether the appellant had the requisite knowledge

that such assault may cause death to his father. If it appears

that the appellant had no requisite knowledge then the offence

may not come under the purview of section 304 part II of IPC.

The weapon used in this particular case are not the fatal

weapons. But it appears for the deposition of Dr. (PW 9) there

are several injuries in the vital part of the body of the deceased.

One or two blow of blunt weapon upon the deceased may

favour the appellant in this case, but the evidence of PW 9

proved the saviour multiple assault by the present appellant

upon his father (deceased). Considering the same it is crystal

clear that the appellant has requisite knowledge that the

assault inflicted upon the deceased may cause death to the

deceased.

Considering the entire aspect I find the Learned Sessions

Judge has correctly passed the impugned Judgment. The

impugned order of conviction and sentence passed by the

Learned Sessions Judge is hereby sustained. There is no

chance to interference with this impugned order in this appeal.

The appeal being meritless is hereby dismissed.

The appellant is on bail he is directed to appear before

the Learned Sessions Judge, concern on 28th of August 2023 to

serve out the sentence; failing which the Sessions Judge to

issue warrant of arrest against the appellant/convict for

compliance of this order.

The instant criminal appeal is disposed of.

Connected CRAN applications if pending are also

disposed of.

Any order of stay /suspension of sentence passed by this

court during the continuation of the appeal is hereby vacated.

LCR be returned at once.

Parties to act upon the server copy and urgent certified

copy of the judgment be received from the concerned Dept. on

usual terms and conditions.

(Subhendu Samanta, J.)