Calcutta High Court (Appellete Side)

Dulal Aheri vs State Of West Bengal on 3 February, 2023

                     IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Ananya Bandyopadhyay

                             C.R.A. 56 of 2005
                               Dulal Aheri
                                  -Vs-
                        State of West Bengal


For the Amicus Curiae    :     Mr. Santanu Talukdar

For the State            :     Mr. Binay Panda
                               Mr. Subham Bhakat


Heard on                 :     14.12.2022

Judgment on              :     03.02.2023

Ananya Bandyopadhyay, J. :-

 1.

The instant appeal is directed against the Judgment and order

of conviction dated 19.07.2004 passed by Additional Sessions

Judge, 2nd Court Malda in Sessions Trial No. 33/2003 arising

out of Sessions Case No. 65 of 2000 convicting the appellant

u/s 304 Part II of the Indian Penal Code sentencing him to

suffer rigorous imprisonment for 5 years and to pay fine of Rs.

2000/- in default to suffer further rigorous imprisonment for

three months.

2. The prosecution case originated on the basis of a complaint

dated 20.03.1995 filed by the wife of the victim which precisely

stated on 18.03.1995 at about 6 P. M. the appellant a co-

villager in an inebriated state on Dolyatra took a piece of

'gamcha' and a pair of chappal from their house, claiming the

same to belong to him. The pair of chappal belonged to the

son-in-law of the complainant. The complainant along with the

husband went to the house of the appellant to collect the said

articles and was abused by the appellant and in course of such

squabble, the appellant hit her husband with a stick on his

belly, who instantly fell on the ground and sustained injury.

The victim was nursed on his return to their house and on

20.03.1995 at 4. A. M. he expired. The complainant stated the

appellant killed her husband with a below of stick illegally.

3. Based on the aforesaid complainant Malda P.S. Case No.

44/95 dated 20.03.1995 was instituted under Section 304 of

the Indian Penal Code. Investigation instituted which ended in

submission of charge sheet, charge was framed against the

appellant under Section 304 of the Indian Penal Code to which

he pleaded not guilty and claimed to the trial.

4. The prosecution cited nine witnesses and exhibited certain

documents.

5. The learned Advocate Mr. Santanu Talukdar, appointed as the

Amicus Curiae submitted the evidence of P.W.1 was not

trustworthy. In the complaint she stated to have gone to the

house of the appellant along with her husband but included

the name of her son-in-law, Ramesh to have accompanied

them to the house of the appellant during her evidence. The

victim was not taken to the hospital or to a doctor to treat his

injury which could have saved his life as opined by the Post

morterm doctor. It was further argued P.W.2 stated the victim

used to walk using a lathi and was suffering from various

ailments for a long period. Under such circumstances there

was possibility of death due to other reason apart from the hit

of the lathi. P.W. 3 stated the victim was taken to Malda Sadar

Hospital contrary to the statement of P.W.1 who stated the

victim was never treated. P.W. 4 contradicted his own

statements during his cross-examination. P.W. 4 stated that

three persons including him went to the house of the appellant

and the alleged assault took place within a minute without any

altercation between them. The victim lost his sense which he

never regained thereafter. It was further submitted that

prosecution evidence reflected inconsistencies. The seized

'lathi' could be easily available in the market. There was every

possibility of the appellant to fall on the undulating surface

and get injured. The prosecution failed to establish its case

and accordingly the appeal should be allowed.

6. The learned Advocate for the State submitted that prosecution

could cite creditworthy eye witnesses whose evidence directly

established the offence committed by the appellant

corroborated by the medical opinion. The prosecution was able

to prove its case and the appeal should be dismissed.

7. A circumspection of the evidence on record reveal P.W.1,

P.W.5, P.W.7 to be the eye witnesses. The evidence of P.W.2,

P.W.3, P.W.4, P.W.6 was based on hearsay.

8. P.W.1, P.W.5 and P.W.7 in unison stated the incident of

assault to have taken place at the house of the appellant.

Thereafter the victim was brought home who became

unconscious. The incident of assault was not immediately

reported to the police either by the relatives of the victim or by

the neighbours. The victim was not provided any kind of

medical assistance to restore his consciousness.

9. P.W. 9, Dr. Shayamapada Basak on post mortem examination

found the following injuries:

"One abrasion ½" X ½" over left side of abdomen two inches

above and left to midline over the left hypochondriun.

On dissection I found in peretoneum intra-abdominal paus

present one rapture in the small intestine about ½" X 1½" with

adhesion."

P.W.9 opined death was due to the effect of the injuries

homicidal in nature, "injuries may cause due to assault with

lathi. Then says, it depends upon force applied".

During his cross-examination P.W.9 stated "if anyone is hit by

a lathi face to face and not resisted the same would struck on

the front portion of head and face". P.W. 9 further stated "the

wound 'Abrasion' may cause due to fall on a hand substance or

due to hit by a lathi (hand and blunt object) Wound depends on

the target of the assailant". P.W. 9 concluded that injured

Munshi Madi, since deceased, could have survived if proper

medical aid was given to him.

10. P.W. 7, the daughter of the victim during her cross-

examination stated the appellant Dulal gave a lathi blow on

her father raising his hands. If a person raises his hand

holding a lathi, it will definitely be at a distance above the

stomach of a person. In order to hit a person in the stomach a

raised posture of the hand is not set in motion that too with a

lathi in his hand. A raised hand with a lathi would target the

head or face of the victim and not the stomach. This is

indicative of the fact that the lathi was not used to hit the

stomach of the victim.

11. The injuries caused to the victim can be the result of any other

possibility. P.W.1 in her complaint stated the victim fell down

sustaining injury, however retracted in her evidence before the

Court. P.W. 1 deposed the victim to be alive for more than a

day after the alleged incident of assault took place. Therefore,

the initial impression generated triviality of the issue, negligent

in nature for which medical assistance was not recoursed.

P.W.2 stated the victim walked with the assistance of a lathi

and was suffering from various ailments for a long time. P.W. 5

stated that the incident was report to their village 'Moral' on

the date of the incident. However, prosecution did not examine

the said 'Moral'. The recovered 'lathi' was not sent for obtaining

the opinion of fingerprint expert.

12. The nature of the wound does not reflect extreme severity.

However, how a person's body would react to any kind of

wound is individualistic in character and cannot be

generalized. Section 304 of the IPC states 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."

13. The injury as alleged was the result of a single instance. P.W.

7, the daughter of the victim, stated the appellant took the pair

of chappal and the 'gamcha' from their house in absence of an

outsider. Nobody saw the appellant to steal the articles as

aforesaid. It was on the basis of suspicion the victim and

others went to the house of the appellant and a ruckus was

created, who according to P.W. 1, was intoxicated at the

relevant time. The criminal intent, motive or mens rea on the

part of the appellant to commit the offence u/s 304 of IPC is

absent. The alleged theft of a pair of chappal and a 'gamcha'

enraged the de-facto complainant and her family members

probabilises false implication of the appellant. In absence of a