Sukumar Sarkar vs The State Of West Bengal
2023 Latest Caselaw 1121 Cal

                     IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL APPELLATE JURISDICTION
                             APPELLATE SIDE
Present:-

HON'BLE JUSTICE CHITTA RANJAN DASH
              AND
HON'BLE JUSTICE PARTHA SARATHI SEN


                       C.R.A. No. 608 of 2005

                             Sukumar Sarkar
                                 -Versus-
                       The State of West Bengal


For the Appellant      : Ms. Chandreyee Alam, Adv.
For the State          : Mr. Joydeep Roy, Adv.
                       : Ms. Sujata Das, Adv.


Last Heard on          :     31.01.2023

Judgment on            :     10.02.2023


PARTHA SARATHI SEN, J. : -

1.

The instant appeal arises out of the judgement of conviction and

order of sentence both dated 25th November, 2004, as passed by the

Learned Additional Sessions Judge, Fast Track Court, Durgapur in

Sessions Trial No.23 of 2004 arising out of Sessions Case No.96 of 2003.

By the impugned judgement learned trial court found the present

appellant Sukumar Sarkar guilty of the offence under Section 302 of the

Indian Penal Code and thus sentenced him to suffer imprisonment for life

and to pay a fine of Rs. 2000/- in default to suffer further R.I for six

months. The convict felt aggrieved and thus preferred the instant

application.

2. According to the prosecution one Kanai Lal Sarkar, son of Late

Chuni Lal Sarkar of Village Beraberia Govt. Colony, P.S Amdanga, District

North-24-Parganas lodged a written complaint with the New Township

Police Station, Durgapur, District Burdwan stating, inter alia, that

marriage of his youngest sister Amala Sarkar was solemnized with one

Sukumar Sarkar of Subhas Pally, Durgapur-6 about 25 years back. It was

his further version in the said written complaint that on 08.04.2003 at

about 4 a.m his said brother-in-law Sukumar Sarkar assaulted his sister

Amala by a hammer and on hearing alarm, the children of the deceased

and her neighbours rushed to the spot where the victim was found in

senseless condition and at that time she was profusely bleeding.

According to him the victim was thereafter taken to Bidhannagar Hospital

where she succumbed to her injuries on 09.04.2003 at about 1:40 p.m.

3. On the basis of the such written complaint NTS P.S Case No.

28/2003 dated 10.04.2003 was started under Section 304 IPC.

Investigation was taken up and on completion of the same charge sheet

was submitted under Sections 302 IPC. After commitment of the said

case, the matter was transferred to the learned trial court for trial and

disposal. Lower Court Record reveals that the learned trial court on the

day of consideration of the charge after perusing entire materials as

available in the case record and in the Case Diary framed charge under

Section 302 IPC as against the present appellant. Since the present

appellant before the learned trial court pleaded his innocence and claimed

to be tried, the said trial proceeded.

4. Trial Court Record reveals that for bringing home the charge under

Section 302 IPC as against the accused, the prosecution has examined 14

witnesses in all and several documents have been exhibited on their

behalf. Though before the learned trial court the accused have not

adduced evidence on his behalf but from the trend of cross examination

and the answers as given by the accused in his examination under

Section 313 Cr.P.C it transpires to us that the defence case is based on

clear denial and false implication. For effective adjudication of the instant

appeal short description of the prosecution witnesses are required to be

given and thus are enumerated hereunder.

PW1, PW3 and PW11 are the neighbours of the present appellant as

well as of deceased. PW2 and PW4 are the daughter and son of the

present appellant and the victim respectively. PW7 is the brother of the

deceased and is the de facto complainant while PW8 is another brother of

the victim. PW6 is the scribe. PW9 is a doctor of Durgapur Hospital and

PW13 is a doctor of State General Hospital, Habra both of whom have

treated the victim in their respective hospitals. PW5 is the Autopsy

Surgeon who performed Post Mortem examination over the dead body of

the deceased. PW12 is the Recording Officer and PW14 is the I.O of this

case.

5. Ms. Chandreyee Alam, learned amicus curiae in course of her

argument draws attention of ours to the evidence of the prosecution

witnesses. It is argued by her that since this case is based on

circumstantial evidence and since the evidence of the prosecution

witnesses do not prove of the incriminating circumstances as against the

present appellant beyond reasonable doubt, the impugned judgement

may be set aside. It is further argued that the deposition of the PW2

(daughter of the victim) and PW4 vis-à-vis deposition of PW5 Autopsy

Surgeon are not found to be corroborative for which benefit of doubt

ought to have been extended in favour of the present appellant by the

learned trial court. Learned amicus curiae, thus submits before this court

that this is a fit case for allowing the instant appeal by setting aside the

impugned judgement.

6. Per contra, learned advocate for the State submits before this Court

that deposition of PW2 and PW4 i.e. the children of the victim and the

present appellant are corroborative in nature and from their evidence it

would reveal that at the time of commission of alleged crime the present

appellant and their mother (deceased) were together in their bedroom and

that the incident of murder took place in the said bedroom of the said

appellant and the victim. In view of such, it is none but the appellant who

has to explain as to how the alleged incident of murder took place since

the matter is within his special knowledge as per the provisions of Section

106 of the Evidence Act. It is further argued that since the present

appellant before the learned trial court has failed to discharge his onus,

learned trial court is very much justified in drawing up the presumption

of guilt as against the present appellant. It is thus submitted on behalf of

the State that it is a fit case for dismissal of the instant appeal by

sustaining the impugned judgement.

7. We have meticulously gone through the entire materials as available

in the trial court record including the evidence of the prosecution

witnesses both oral and documentary, the examination of the accused

persons under 313 Cr.P.C and the impugned judgement.

8. On conjoint perusal of the evidence of PW2 and PW4 i.e. the

daughter and son of the present appellant and the deceased, it appears to

us that it is undisputed that in the house of the present appellant there

are two rooms and a verandah which is covered one and can be used as a

room. Both the aforesaid two witnesses i.e. PW2 and PW4 testified that on

the fateful night their parents slept together in the said covered verandah

room and in the early morning PW2 heard hue and cry of her mother and

thereafter she called her brother (PW4) and when both of them entered

into the said covered verandah room, they noticed that their mother was

lying on her bed in a pool of blood in unconscious condition with bleeding

injury on her forehead and that their father i.e. the present appellant was

present by the side of their mother. So far as, this part of the evidence as

adduced by PW2 and PW4 is concerned it reveals that such testimonies of

PW2 and PW4 also got due corroboration from the evidence of PW1, PW3

and PW11 who are the neighbours of the present appellant who before the

learned trial court testified that immediately after hearing the hue and cry

of PW2 they rushed to the P.O and found the victim was lying

unconscious on her bed in a pool of blood with a bleeding injury on her

forehead and at that time the present appellant was also present them. In

course of their respective cross-examinations nothing could be elicited

from the mouth of the PW2 and PW4 for which they may be disbelieved.

From the testimonies of PW2 and PW4 nothing could also be elicited to

suggest that relation between them and the present appellant were not

cordial for which they may led evidence as against the present appellant

which is contrary to the truth. At this juncture if we look to the evidence

of PW9 and PW13 i.e. the doctors of Durgapur Hospital and State General

Hospital at Habra, we find that the nature of injuries as described by PW2

and PW4 as noticed by them on the forehead of their mother found due

corroboration from their depositions as well as from the bed head tickets

and/or treatment sheets of the victim.

9. So far as the deposition of the Autopsy Surgeon i.e. PW5 is

concerned we find that in his examination-in-chief as well as in his Post

Mortem Report (Exhibit 3) he found the following injuries present on the

deceased Amala Sarkar and thus, are reproduced hereunder in verbatim:-

"1. Surgically stitched wound in the centre of the fore head below the hair lines with a zigzag margin about 2 X 21/2 inch length.

2. Multiple fracture of the frontal bone.

3. There was an interact liniak hammerage.

The cause of death in my opinion is due to shock of the hammarage, due to injury mentioned above. Such injury is possible if the injured been hurt by hammer in her fore-head."

10. In view of the discussion made hereinabove we have got no

hesitation to hold that the death of the victim Amala Sarkar was

homicidal in nature and since the prosecution is successful in showing

that at the time of the alleged incident the present appellant and the

deceased Amala Sarkar were together in their bed room, onus lies upon

the present appellant to explain as to how the said victim Amala Sarkar

suffered serious injury on her forehead. It is pertinent to mention herein

that before the learned trial court the present appellant could have

availed the opportunity to discharge such onus either by adducing

appropriate evidence or by giving appropriate answers in course of his

examination under Section 313 Cr.P.C. However, since the same has not

been done we find that the learned trial court is very much justified in

holding that it is none but the present appellant who committed the crime

at the P.O at the relevant day and hour.

11. At this juncture a question arises as to whether learned trial court

is at all justified in holding the present appellant guilty under Section 302

of the Indian Penal Code or not. In order to decide as to whether in the

present case, the culpable homicide falls under the category of murder or

not we propose to look to the celebrated decision of State of Andhra

Pradesh vs. Rayavarapu Punnayya and Another reported in (1976) 4

SCC 382. In the said reported decision the distinction between culpable

homicide and murder has been well explained and thus the relevant

portion of the said reported decision of Rayavarapu Punnayya (supra) is

reproduced hereunder in verbatim:-

"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the

Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section

300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.

       Section 299                                     Section 300
A     person      commits             Subject to certain exceptions culpable homicide is
culpable homicide if the              murder if the act by which the death is caused is
act by which the death is             done --
caused is done --
                                        INTENTION

(a) With the intention of (1) With the intention of causing death; or causing death; or

(b) With the intention of (2) With the intention of causing such bodily injury as causing such bodily the offender knows to be likely to cause the death of the injury as is likely to person to whom the harm is caused; or cause death; or (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE

(c) With the knowledge (4) With the knowledge that the act is so imminently that the act dangerous that it must in all probability cause death or is likely to cause such bodily injury as is likely to cause death, and without death any excuse for incurring the risk of causing death or such injury as is mentioned above.

15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.

16. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death

will be the "most probable" result of the injury, having regard to the ordinary course of nature.

17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illustration of this point.

18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):

"The prosecution must prove the following facts before it can bring a case under Section 300, 'thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "murder". Illustration (c) appended to Section 300 clearly brings out this point."

12. With the aforesaid celebrated case law in the background we are clear

that the offence neither falls within the ambit of Clause (a) of Section 299

IPC or Clause "firstly" of Section 300 IPC. The offence also does not fall

within Clause "secondly" of Section 300 IPC. We have to find out whether

the case falls within the ambit of Clause "thirdly" of Section 300 IPC or

Clause (b) of Section 299 IPC. For this purpose, the view of Hon'ble

Supreme Court as taken in Virsa Singh with approval in the case of

Rayavarapu Punnayya shall be of much guidance to us. It is clearly

ruled by Hon'ble Supreme Court in the case of Virsa Singh that in order

to bring a case under Section 300 "thirdly", four objective tests are to be

satisfied :-

i) The prosecution must establish quite objectively

that a bodily injury is present.

ii) The nature of injury must be proved.

iii) It must be proved that there was an intention to

inflict that particular injury, that is to say that it was

not accidental or unintentional or that some other

kind of injury was intended.

iv) It must be proved that injury of the type just

described made out of the three elements set out

above was sufficient to cause death in the ordinary

course of nature.

The fourth part of the enquiry is purely objective and inferential and has

nothing to do with the intention of the offender.

13. In the present case there is presence of a bodily injury on the forehead

of the deceased the nature of injury is

a. multiple fracture on the frontal bone (external).

b. Interact liniak haemorrhage (internal).

The aforesaid injuries have been linked to a hammer but it is an opinion

of theMedical Officer (P.W.-5) only.

14. The Medical Officer in his cross-examination has testified thus: -

"........if a person be hurt by hammer then there was probability of depressed impression on the particular portion but it depends upon the force. It is also possible that there may be a circle or a circle fresh impression upon injured portion if the hammer been struck with full circle and if hammer been struck with the margin then the marginal impression is possible on the particular position of the (torn). It is true that on repeated hammering upon forehead splinter of bone may be damaged to a great extent. Only lacerated injury is possible if the person be hurt with a hammer ......."

15. The Medical Officer who examined the deceased when she was taken

to hospital and was alive is P.W.-13. He has opined that he found multiple

cut edged lacerated injuries over forehead. If we compare the evidence of

P.W.-13 and P.W.-5 it is clear that the appellant has given one blow only

on the forehead of the deceased that too not with sufficient force. If we

analyse the degree of probability as enunciated in paragraph 16 of the

Rayavarapu Punnayya judgment it is clear that the culpable homicide

here is not of gravest degree but it is of the lowest degree. From the

evidence of P.W.-5 and P.W.-13, we are of the view that the internal injury

as caused was not intended by the appellant. The Medical Officer (P.W.-5)

who conducted post-mortem has also nowhere specifically opined that the

injury sustained by the deceased is sufficient in ordinary course to cause

death. Rather the opinion regarding cause of death is shock and

haemorrhage. Haemorrhage could have been arrested by timely

intervention and the shock might have been caused owing to

haemorrhage resulting in death of the deceased. Had there been an injury

sufficient in ordinary course to cause death, the Medical Officer, P.W.-5

must have opined that in clear term. There is no opinion to that effect.

16. In the present case there is no eye witness to the occurrence except

the opinion of the Medical Officers (P.W.-5 and P.W.-13). There is no

evidence to throw light as to how and in what manner and with what

weapon the deceased was assaulted. No doubt a hammer has been seized

from the spot but there is nothing on record to connect the hammer with

the assault. In view of such evidence, we have no option but to travel to

find out the intention or knowledge on the part of the actor from the

injury sustained.

The fourth test as enumerated supra is not satisfied from the

evidence on record in view of the fact that the evidence adduced to prove

the point lacks objectivity and any inference from such evidence

prejudicial to the appellant may result in miscarriage of justice.

17. Taking into consideration the evidence in their entirety, we are of the

view that the act of the appellant falls within the ambit of Clause 'b' of

Section 299 IPC and not within Clause "Thirdly" of Section 300 IPC.

18. Intention being the most important ingredient of Clause 'b' of Section

299 IPC, the act of the appellant falls under Section 304 Part 1 IPC.

19. From the record, it is found that the appellant was arrested on

15.04.2003 and he was enlarged on bail on 12.03.2004. He was however

not released for non-submission of bail bond. Ultimately he was enlarged

on bail by this High Court on 11.02.2014. So more than 10 years the

appellant was there in custody.

20. In view of our discussion supra, in fine, we allow the appeal in part

modifying the conviction of the appellant to one under Section 304 Part 1

IPC and confine the sentence to period the appellant has already

undergone as from the record we find that the appellant was in custody

for more than 10 years.

21. The appellant therefore be discharged of the bail bond. However, if the

appellant has not yet availed the benefit of bail as granted by this Court

and is still in custody, he be released forthwith, if his detention is not

required in any other case. Department is directed to send down the Trial

Court record to the Trial Court along with a copy of this Judgement

forthwith.

22. Urgent Photostat certified copy of this Judgment, if applied for, be

given to the parties on completion of usual formalities.

I agree.

(Chitta Ranjan Dash, J.)                          (Partha Sarathi Sen, J.)