Biswanath Konai And Others vs State Of West Bengal

Joymalya Bagchi, J

The appeals are directed against the judgment and order dated 28.11.2017 and 29.11.2017 passed by the learned Additional Sessions Judge, Fast Track Court, Katwa in Sessions Trial No. 134 of 2007 arising out of Sessions Case No. 87 of 2007 convicting Biswanath Konai ( appellant in CRA 54 of 2018) under Section 326/304 (part II) of the Indian Penal Code and directing him to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.3000/- only in default to suffer rigorous imprisonment for one year more for the alleged offence under Section 326 of the Indian Penal Code and to suffer rigorous imprisonment for a period of eight years and to pay a fine of Rs.5,000/-, in default to suffer rigorous imprisonment for two years more for the offence punishable under section 304 (part II) of the Indian Penal Code and convicting Sushil Konai (appellant in CRA 75 of 2018) for commission of offence punishable under Section 324/304(part II) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- in default to suffer for one month more for the offence punishable under section 324 of the Indian Penal Code and to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 5000/-, in default to suffer rigorous imprisonment for two years more for the offence punishable under section 304 (part II) of the Indian Penal Code, both the sentences to run concurrently.

Prosecution case as alleged against the appellants is to the effect that on 21.10.2004 at about 8.30a.m Prabir Kumar Prodhan was engaged in raising a fence around his barn in order to prevent damage to foodgrains stored therein by cattle. At that time the appellants along with other accused persons viz. Ashok Kumar Prodhan, Amrita Konai, Lalmohan Konai, Patai Konai, Ujjal Konai, Jyotsna Konai, Suchitra Konai, Sushil Kumar Konai and Biswanath Konai under the leadership of Ashok Kumar Prodhan being armed with hasua, ramdaw,lathi, boti, sabol etc. attacked Prabir Kumar Prodhan and assaulted him on various parts of his body including his head. As a result Prabir suffered bleeding injuries and he shouted for help. Hearing his shouts Netai Prodhan and Gour Prodhan (P.Ws. 3 and 4 herein) came to the spot and were also severely assaulted by the accused persons. Local people intervened and called the police. Police came to the spot and rescued Prabir Kumar Prodhan. He was initially taken to the police station and was arrested in connection with the counter-case registered against him over the self-same incident and subsequently shifted to hospital where he breathed his last on 28.10.2004. Over the incident first information report was registered by P.W. 1, Tara Rani Prodhan, wife of the deceased, being Ketugram Police Station Case No. 73 of 2004 dated 28.10.2004 under Sections 147/148/149/325/326/307 of the Indian Penal Code. Subsequent to death of the victim Section 302 of the Indian Penal Code was added to the array of offences.

In conclusion of investigation charge-sheet was filed against the appellants and other accused persons and the case was committed to the Court of Sessions for trial and disposal.

Charge was framed against appellant Sushil Konai and other accused persons under Sections 148/325/307/149/302/149 of the Indian Penal Code and against appellant Biswanath Konai under Sections 326/307/302 of the Indian Penal Code. In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents. In conclusion of trial, trial judge by the impugned judgment and order convicted appellants Biswanath Konai and Sushil Konai, as aforesaid. However, by the selfsame judgment and order, other accused persons were acquitted of the charges levelled against them. It is pertinent to mention that the counter case registered against Netai Prodhan and Gour Prodhan, P.W.3 and P.W.4 herein ended in acquittal.

Mr. Roy, learned Advocate appearing for the appellants submits that the evidence on record does not establish whether the appellants intended to cause the death of the deceased or that they had knowledge that the injuries inflicted by them was likely to cause death. In support of his submission, he drew the attention of this Court to the evidence of P.W.11, Dr. Maloy Kr. Barman (post-mortem doctor) who opined that the cause of death of the victim was due to cardio respiratory failure in a case of diabetic gangrene. He accordingly, prayed for acquittal of the appellants.

On the other hand, Mr. Maity, learned Additional Public Prosecutor argues that the evidence on record particularly that of the eye witnesses including the injured witnesses P.W.3 and P.W.4 show that the appellants had come in a body being armed with various weapons and had assaulted the victim who was a diabetic patient which resulted in his death. Hence, the prosecution case is proved beyond doubt.

I have given anxious consideration to the rival submissions of the parties in the light of the evidence on record.

P.W.1, Tara Rani Prodhan, wife of the deceased is the de-facto complainant. She has described the assault on her husband on the fateful day while he was raising a fence around his barn. She deposed that the appellants under the leadership of Ashok Kumar Prodhan (acquitted accused) had indiscriminately assaulted her husband on the leg and head. Biswanath Konai assaulted on her husband on the head with the help of a hasua. Netai Prodhan, (P.W.3) and Gour Prodhan, (P.W.4), nephews of her husband, rushed to the spot and were also assaulted. When she arrived at the spot, her husband was lying in a severely injured condition. Police came to the place of occurrence and admitted him at Katwa S. D. Hospital. She proved her signature on the written complaint which was scribed by P.W.2, her brother-in-law. Her husband died after a couple of days. She signed on the inquest report and also on the seizure list regarding seizure of the wearing apparels of the deceased.

P.W.2, Sudhir Prodhan is the brother of the deceased. He deposed there was a scuffle between the accused persons and Prabir Prodhan. Under the direction of Ashok Prodhan, the other accused persons started assaulting Prabir. Sushil Konai assaulted Prabir on his leg with a crowbar. As a result of assault, he fell down. Gour and Netai, sons of P.W.2 came to the spot and were assaulted by the accused persons. Prabir Prodhan was admitted to Katwa S. D. Hospital where he expired on 28.10.2004. He proved the written complaint scribed by him, Ext.1/1. The accused persons registered counter case against Gour, Netai and Prabir.

P.W.3, Netai Prodhan and P.W.4, Gour Prodhan claimed to be injured witnesses.

P.W.3 deposed he saw the accused persons dragging his uncle Probir Prodhan towards the road. He protested. Thereupon, the accused persons viz., Ashok Prodhan, Biswanath Konai, Lal Mohan Konai, Sushil Konai, Ujjal Konai, Suchitra Konai, Patai Konai and Jyotsna Konai assaulted him. Biswanath assaulted his uncle with a hasua on the head in order to kill him.

P.W.4 has substantially corroborated his brother with regard to the nature of assault on his uncle.

P.W.5, Chandra Sekhar Prodhan is a nephew of the deceased. He is a post occurrence witness.

P.W.7, Sanjoy Chatterjee is an independent witness. He deposed he saw the accused persons dragging Probir Prodhan towards the house of Biswanath Konai. Biswanath Konai assaulted Probir with a hasua on his head. As a result he fell at the spot.

P.W.9, Kashinath Ghosh is another local witness who has corroborated the version of P.W.7.

P.W.6, Abhijit Prodhan held inquest over the dead body of the victim.

P.W.10, Asoke Kumar Majhi, P.W.11, Maloy Kumar Barman and P.W.14, Dr. Sanjoy Kr. Bhattacharyay are the medical witnesses.

P.W.10 was a medical officer attached to Katwa S. D. Hospital at the material point of time. He deposed that Probir Prodhan was admitted to the hospital with a history of head injury. He examined the patient who was conscious. He found that the patient was reacting normally to light. There was abrasion on the left occipital region. There were stitched wound on his left leg. Patient was diabetic and was taking ante-diabetic drug. He proved the bed head ticket, Ext.4. The nature of injury found on the victim who was a diabetic may have caused his death.

P.W.11 Post Mortem doctor, however, opined that the victim had died due to cardio respiratory failure in a case of diabetic gangrene.

P.W.14 was a medical officer attached to Ketugram B.P.H.C. where the victim Prabir Prodhan was treated. He proved the entries in register maintained in the said hospital (Ext. 12). He deposed he found:-

1) A linear (1") deep ( 1 x 8) cut injuries over right parietal region of scalp which was repaired with two two stiches at the hospital.

2) A circular (half inch) diametre deep ¼" cut injury over left shin bone which got two stitches at the hospital at 6.05 p.m. on 21.10.04.

P.W.13, Phanibhusan Sarkar is the investigating officer in the instant case. From the evidence on record particularly that of the relation witnesses, P.W.1, P.W.2, P.W.3 and P.W.4 which is corroborated by independent witnesses, P.W.7 and P.W.9, I have no doubt in my mind that the appellants were members of a body of men who had a scuffle with the deceased Probir Prodhan. They were armed with various weapons and assaulted him indiscriminately. As a result, the deceased suffered head injury as well as injury on his leg. He was initially treated at Ketugram B.P.H.C. and subsequently shifted to Katwa S. D. Hospital where he was treated by P.W.10. Victim was a diabetic patient and owing to such pre-existing health condition, he developed gangrene in the left leg and ultimately died on 28.10.2004. Although P.W.10 claimed that the injury on the head had contributed to the death of the victim, post mortem report shows that the gangrenous tissue being 4.5" x 4" had developed on the left leg of the victim. Hence, there is no proximate link between development of gangrenous growth on the left leg of the diabetic victim and the assault on his head by Biswanath Konai. Injury on the leg caused by Sushil Konai appears to be a superficial one and by no stretch of imagination it can be inferred that such injury was caused with either the intention or knowledge that such injury is likely to cause death. Furthermore, no evidence is forthcoming to show that the appellants had any knowledge with regard to the diabetic condition of the victim which appears to be the primary cause of his death due to gangrene as stated in the post mortem report.

In the light of the aforesaid discussion, I am constrained to hold that the evidence on record does not establish any proximate link between the assault of Biswanath Konai on the head of the victim and his death due to diabetic gangrene on his left leg. Even the act of Sushil Konai in causing a simple injury cannot be attributed with the requisite mens rea to bring it within the culpable parameters of the offence punishable under Section 304(part II) of the Indian Penal Code. Hence, I am of the opinion that the appellants are entitled to an order of acquittal on such charge.

However, keeping in mind the nature of injury inflicted on the victim by the appellants Biswanath Konai and Sushil Konai, I am of the opinion that the conviction recorded against them for the offence punishable under Section 326 of the Indian Penal Code and 324 of the Indian Penal Code respectively are, however, justified.

Accordingly, I hold as follows:-

a) Conviction and sentence of the appellants viz., Biswanath Konai and Sushil Konai for the offence punishable under Section 304 (part-II) of the Indian Penal Code are set aside.

b) Conviction and sentence of Sushil Konai under Section 324 of the Indian Penal Code is upheld.

c) Conviction of the appellant Biswanath Konai under Section 326 of the Indian Penal Code is also upheld. However, sentence imposed upon him on such score is modified and he is directed to suffer rigorous imprisonment for three years and to pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for two years more.

The appeal is allowed to the aforesaid extent.

The period of detention, if any, undergone by the appellants during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon him in terms of section 428 Cr.P.C.

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 appellants within a week from the date of putting in the requisites.

I agree.