Chandan Paul & Anr. vs State of West Bengal

Three convicted persons are the

appellants in these two appeals. They were the accused in

Sessions Case no.70/2003/Sessions Trial no.38/2005 in

which judgment dated 29th June, 2015 was passed by the

Additional Sessions Judge, Katwa. The appellants in

Criminal Appeal no.529/2015 had been found guilty of

charges for offences punishable under sections 323 / 325 of

the Indian Penal Code (IPC). The appellant in Criminal

Appeal no.545/2015 was found, in addition to the above,

guilty of the charge for offence punishable under section 302

of the IPC.

Katwa P.S case no.201/1999 dated 26th November,

1999 under sections 143 / 326 / 34 IPC was initiated on the

basis of written complaint dated 26th November, 1999. Later,

section 302 IPC was added on the death of one Anil Kumar

Hazra. The police submitted charge-sheet dated 27th March,

2002 under sections 341 / 323 / 325 / 302 / 34 IPC on

completion of investigation. Charges were framed accordingly

and trial took place.

The written complaint dated 26th November, 1999 was

that at about 3:00 in the afternoon trouble took place

between the appellants and the said Anil Kumar Hazra, since

deceased over the issue of drainage of water from the house.

The appellants accompanied by 5/6 persons physically

assaulted the deceased, his wife, also since subsequently

deceased, his daughter Jayanti Hazra and son Sandip Hazra.

All of them sustained serious bleeding injuries. Local people

took them to Katwa hospital and admitted them there. The

complaint stated the deceased was struggling for life and his

wife also critical.

It appears from the inquest report that upon

information received at 09:45 hrs. on 27th November, 1999,

inquiry was made. The body of Anil Kumar Hazra was found

in the male ward on the ground floor of Katwa S.D.Hospital.

The post-mortem report, also dated 27th November, 1999

states, inter alia, one haematoma (3"x2") over the mid-

portion of fronto parietal region depressed at the middle of frontal bone and one haematoma over the right

supraclavicular region (7"x3/4"). The doctor opined that

cause of death was due to shock and hemorrhage as a result

of injuries which were ante-mortem but could not say

whether nature of injuries was accidental or homicidal.

Widow of the said deceased died on 10th October, 2006

and as such could not be examined in the trial. It may be

mentioned here that the scribe and the complainant were

respectively PW 1 and PW 2, the latter being the brother of

the deceased. The daughter of the deceased was PW 3 while

the son PW 4. Retired sub-inspector of police Sri S.

Acharyya, who was entrusted with the investigation, was PW

12.

The prosecution case at trial was that all the

prosecution witnesses had fully corroborated each other,

particularly the eye witness accounts, about the incident and

the roles played by the accused in the assault whereby one person died and three others were severely injured.

Furthermore, the medical evidence fully corroborated the

prosecution case and eye witness versions.

At trial two main contentions of defence were made out.

Firstly that the scribe is admittedly an active worker of

Bharatiya Janata Party (BJP) and a resident of different

locality, far away from the residence of the deceased. There

was no earthly reason to pick up such a political person for

writing the complaint when the complainant himself could

have easily gone to the P.S and stated to the police officer

whose duty was to record the same. The reason is not far to

see since this contention of the defence was that Anil Kumar

Hazra was a butcher and he used to sell meat of hogs which

enraged the Muslims of the locality and in order to save his

skin he took shelter of the BJP. Since the accused are

supporters of Communist Party India (Marxist) [CPI(M)]

party, a false complaint was lodged against them. The

second line of defence was that when the deceased was returning home on 26th November, 1999 at about 3:30 p.m.,

he was heavily drunk and as a result fell down in Pana

Pukur where garbage, pieces of tin, glass and other unused

materials were thrown. Existence of Pana Pukur near alleged

place of occurrence was admitted. The daughter (PW 3) had

stated that her father fell down in Pana Bon. It was evident

that the deceased received injuries when he fell down in the

Pana Pukur and the other alleged persons also received

injuries when they too fell down in the Pana Pukur while

attempting to lift the deceased. It was quite possible that in

drunken state the deceased had accidentally fallen down and

received injuries. In any event, the investigation was slip

shod. The I.O (PW 12) did not seize, inter alia, any blood

stained earth. The seizure of the wooden buttam, alleged to

be the murder weapon, is shrouded in mystery since even

though there were many respectable persons in the locality

but none of them were made witnesses to the seizure. The

seizure was purportedly witnessed by a hawker of Katwa bus

stand (PW 5) having no reason to be present at the place of

occurrence and as such was highly suspicious. The seizure became material exhibit-I but the said exhibit is nothing but

a piece of wood lying in the house of the deceased which was

falsely shown by the prosecution as the weapon of offence.

Mr. Jayanta Narayan Chatterjee, learned advocate

appeared on behalf of the appellants. He submitted that

without abandoning the contentions of defence made out at

trial the alternative contention in appeal is that the

conviction under section 302 IPC should be converted to one

under section 304 Part II IPC and the other two appellants

acquitted. According to him at best the principal accused

had knowledge that the injury inflicted would cause death

but not intention. He submitted, it would be clear from the

evidence that the principal accused without premeditation in

a sudden fight in the heat of passion upon a sudden quarrel

had committed culpable homicide not amounting to murder.

In the facts and circumstances the principal accused was

covered under exception 4 in section 300 IPC. He relied on

several judgments of the Supreme Court of India submit that defective investigation can lead to conversion of conviction, if

not acquittal.

i) Surajit Sarkar v. State of West Bengal reported

in (2013) 2 SCC 146, paragraphs 49 and 63 to

65.

ii) Sukhbir Singh v. State of Haryana reported in

(2002) 3 SCC 327, paragraphs 14, 17 to 19 and

21.

iii) Ankush Shivaji Gaikwad v. State of Maharastra

reported in (2013) 3 Calcutta Criminal Law

Reporter (SC) 826, paragraphs 6 and 27.

iv) Judgment dated 25th September, 2014 in

Criminal Appeal no.111 of 2008 ( Murlidhar

Shivram Palekar and Anr. v. State of

Maharashtra, paragraphs 19 and 20.

He also relied on a Division Bench judgment of this Court in

the case of Noyel Barla v. State of West Bengal reported in

2006 (2) CHN 442, paragraph 18.

Mr. Saibal Bapuli, learned advocate, Additional Public

Prosecutor on behalf of the State submitted that impugned

judgment was well reasoned and should not be interfered

with in appeal. The eye witnesses were correctly held to be

credible witnesses. The prosecution had proved its case to

the hilt regarding the principal, other accused and the

occurrence which resulted in death of the victim and injuries

to the others assaulted. There was no omission in the

investigation fatal to the prosecution case. The wooden

buttam had been duly seized and marked as material

exhibit-1. The defence could not contradict the prosecution

case. Lastly, the inconsistent contentions of the defence

being one of communal and political overtones and the other

of accident did not merit consideration. He relied on a

judgment dated 8th March, 2011 of the Supreme Court in

the case of State of U.P vs. Naresh And Ors . in particular to

the following passages therein:

"23........The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence.

............

In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety......."

The Sessions Court held there is no legal requirement

that the FIR should contain each and every aspect of the prosecution case. Relying upon a decision of the Supreme

Court in the case of State of U.P v. Hari Ram reported in

AIR 1983 Supreme Court 1081, the said Court found it to

be so settled. In Hari Ram (supra) the Supreme Court said

the FIR does not contain full or meticulous details of the

incident but is merely meant to narrate the brief facts which

led to the incident, viz., names of the assailants and the

place of occurrence, etc. The Sessions Court went on to find

that the prosecution case is based mainly on the evidence of

two eye witnesses namely, PW 3 and PW 4. They stated that

they got injured in the incident. The said Court found these

witnesses had totally corroborated each other and the

prosecution case. These witnesses had also stated in detail

how the incident happened, the context thereof, respective

roles and actions of each of the accused in the same and also

the injuries received by the deceased and others. They were

extensively cross-examined by the defence but their evidence

was in no way shaken. For appreciation of evidence of

injured witnesses the said Court relied upon the law as

declared by the Supreme Court in the cases of- 1. Ramaswamy Ayyangar vs. State of Tamil

Nadu, AIR 1976 SC 2027;

State of U.P. vs. Kishan Chand, (2004) 7

SCC 629;

Vishnu & Ors. vs. State of Rajasthan, (2009)

10 SCC 477;

Kartik Malhar vs. State of Bihar (1996) 1

SCC 614;

Sonelal vs. State of MP, AIR 2009 SC 760;

and

Akhtar & Ors. vs. State of Uttaranchal

(2009) 13 SCC 722

The said Court also relied on the case of Hari Narayan

Singh vs. State of West Bengal decided by a Division Bench

of this Court reported in 2009 Criminal Law Journal 4001

(Cal) for the view taken that the number of prosecution

witnesses does not matter in a criminal case as long as those

who have been examined remain cogent and credible even

after cross-examination by the defence, to resist the

argument on behalf of the defence that there were many others who could have been but were not produced as

witnesses by the prosecution.

At this point it is necessary to deal with what we

noticed being that the I.O (PW 12) had said in cross-

examination, he had examined the daughter of the deceased

(PW 3) who stated before him that her father fell down in

Pana Bon. The said Court found it to be a stray statement

which could not wither away the entire prosecution case,

particularly the eye witness versions which stood searching

and extensive cross-examination. The I.O (PW 12) in his

examination-in-chief had said, inter alia, the following:

"I searched for arresting the accused persons but on that date I could not arrest them. I examined available witnesses and recorded their statements u/s 161 Cr.P.C . I met the injured persons in Katwa S.D. hospital. I examined Sushil Hazra, Sandip Hazra, Kalpana Hazra, Jayanti Hazra, Mithu Ghosh, Md. Maniruddin, Lalu Rajbanshi, Nayan Hazra, Falguni Rudra and Mina Bhaduri as witnesses."

Then in cross-examination he had stated, inter alia, :

"I examined witness Jayanti Hazra (PW 3). She stated before me that her father fell down on ''Pana Ban''."

Though it appears from the cross-examination of PW 3

suggestion was put to her that she had stated before the I.O

her father had fallen down on Pana Bon, she having denied

the same, but we do not find the requirements of the proviso

under sub-section (1) of section 162 of the Code of Criminal

Procedure, 1973 were complied with by the defence. In our

view such statement not duly proved could not be of use to

the accused.

Now to consider the new plea made before us. All the

three accused in their respective explanations under section

313 of the Code of Criminal Procedure, 1973 said they were

willing to answer questions put to them and made

statements but not about a sudden fight in the heat of

passion upon a sudden quarrel nor had any of them claimed

to have any injury. The eye witness (PW 3 and PW 4) accounts of the incident are that in the afternoon while the

deceased was returning from office, upon hearing altercation

and noise they along with their mother, since subsequently

deceased, rushed to the place of occurrence. They witnessed

the principal accused assault the deceased on the head with

wooden buttam. The deceased had caught hold of his head,

sat down having sustained bleeding injury and his brain

materials came out. The other accused also assaulted them.

They in their respective cross-examination stated, inter alia,

as follows:

PW 3: "We came to the P.O. from the first floor of our house. It is fact that when we came to the P.O. my father was shouting but it is not a fact that he was shouting for his drunken state."

PW 4: "It is outright false to say that on that date my father went for cutting hogs as butcher. Not a fact that I have falsely stated that there was shouting for killing my father in the afternoon of 26.11.99. Not a fact that none of the accused persons assaulted my father or my mother or my elder sister or to me as alleged by me. Not a fact that we received injuries due to fall into Pana Pukur."

Applicability of exception 4 in section 300 IPC has to be

upon analysis of the evidence. The evidence is that there was

altercation and noise upon hearing which the eye witnesses

along with their mother, since subsequently deceased, went

to the place of occurrence. Evidence points to the place of

occurrence as being on the path or passage leading to the

house of the deceased. The accused were found to be with

the deceased. The deceased was shouting but not because he

was drunk. The principal accused assaulted the deceased

with wooden buttam and the other accused assaulted him

and the eye witnesses. On receiving injury from the principal

accused the deceased caught hold of his head, sat down and

his brain materials came out. He then became senseless

(cross-examination of PW 3) and died later that evening at

10:40 p.m. This with the absence of any injury inflicted on

the accused persons makes it difficult for us to accept the

argument on behalf of the appellants that there was a

sudden fight in the heat of passion upon a sudden quarrel.

The evidence is clear that the deceased was alone at the

place of occurrence where the accused were present and he had been assaulted on the head with a wooden buttam by

the principal accused. The deceased became senseless and

later died. There is no evidence either ocular or

circumstantial to indicate that there was a sudden fight in

the heat of passion upon a sudden quarrel between the

accused and the deceased person. In this context, defence

case put to the eye witnesses was confined to suggestions

that the deceased was not returning from office at the time of

occurrence and that he was drunk.

In view of our finding as above it is to be seen whether

the authorities cited on behalf of the appellants are in their

aid. The Supreme Court in Sukhbir Singh (supra) found the

circumstances of the case to be that after altercation over the

splashing of mud and receiving two slaps on his face, the

accused had declared he would teach the complainant party

a lesson and went home. Immediately thereafter he along

with others came on the spot and, as held by the High Court,

wanted to remove the obstructions caused in the flow of water. As the common object was not discernible, it could,

at the most, be held that Sukhbir Singh intended to cause

the fatal blow to the deceased and the other accused

accompanied him for the purpose of removing the

obstruction or, at the most, for teaching a lesson to the

complainant party. The said Court explained that to avail

the benefit of exception 4, the defence is required to

probabilise that the offence was committed without

premeditation and the offender had not taken any undue

advantage nor acted in a cruel or unusual manner. Sudden

fight, though not defined under the Act implied mutual

provocation. The said Court found that in the case

concededly there was no enmity between the parties and that

the occurrence took place when, inter alia, the deceased gave

slaps to his assailant for no fault of his. In the case before

us, suggestions were put to the eye witnesses (PW 3 and PW

4) that they did not even know the identities of the accused,

that the accused were not related to each other and, most

significant of all, not their neighbours. In this regard the

Sessions Court found as follows: "45........However, from the Order Sheet of this case, it is found that before framing of Charge, accused Bula Mallick @ Paul @ Gouranga Paul @ Mafizul Haque filed an application for discharge from the case raising a similar plea. The said application was dismissed by this Court taking into consideration the fact that accused Bula Mallick @ Paul @ Gouranga Paul @ Mafizul Haque, after being granted bail in the matter, furnished bail bond in the name Bula Paul @ Gouranga @ Mafizul Haque and he was released after acceptance of such bail bond. The Court also found that thereafter he appeared on several dates by filing Haziras in the matter and he did not raise any objection in this regard at the time of commitment. Furthermore, this Court noted that the other two accused of this case never raised any objection regarding this and never stated that they were not the wife and son of the accused Bula Mallick @ Paul @ Gouranga Paul @ Mafizul Haque. Later Charge was framed by this Court on 27.07.2005. It is also found from the record of this case that even after framing of Charge the said accused filed Haziras on the dates of trial as sometimes as "Mafizul Haque @ Bula Paul" or sometimes as "Mafizul Haque @ Bula"."

Inference drawn can only be in support of our finding from

either of the two following situations. One situation as per

the evidence of PW 3 and PW 4 is that there was altercation

in the morning, when the deceased was leaving for office,

regarding drainage of water from the house of the deceased linking that incident to the occurrence in the afternoon. That

would be consistent with the said witnesses knowing the

accused to be related to each other and being their

neighbours. Such situation militates against inference of

there being later in the afternoon a sudden fight in the heat

of passion upon a sudden quarrel. However, if the accused

had not held out as being related to each other and were not

neighbours of the deceased, their presence at the place of

occurrence and plea of a sudden fight in the heat of passion

upon a sudden quarrel between them and the deceased

persons is based on no evidence. In the circumstances we

find the court below had taken a lenient view in being of the

opinion that the elements of "prior meeting of minds" or "pre-

arranged plan" or "suddenly formed plan" was not proved for

the charge under section 34 IPC against the appellants.

In Surajit Sarkar (supra) while the Apex Court was not

prepared to accept as a broad proposition of law that in no

case can defective or shoddy investigation lead to an acquittal as it would eventually depend on the defects

pointed out, on the facts of that case being, inter alia, the

nature of injuries, the said Court held it was difficult to

accept the view that the accused intended to cause death of

the deceased or that the injuries were so imminently

dangerous that they would, in all probability, cause death.

The injuries were (1"x1/2") cut mark over the right fronto

parietal region and (1/2") cut mark over the back of right

parietal region. There were some abrasion marks over right

ear and right knee and the right parietal bone was fractured.

The membrane and brain matter were ruptured. Two ribs

and a right radius was also fractured and dislocation of the

right elbow joint. The doctor had deposed that the injuries

to the parietal region may be caused by contact with a hard

and blunt weapon or even by a fall. In the case before us the

injury was (3"x2") over the mid-portion of fronto parietal

region depressed at the middle of frontal bone and one

haematoma over the right supraclavicular region (7"x3/4").

The nature of injuries inflicted on the deceased in this case

were imminently dangerous, the evidence being that the deceased became and died later that evening. We are unable

to hold that in the facts and circumstances the principal

accused in inflicting such injuries did not have intention to

kill.

In Ankush Shivaji Gaikwad (supra) the Supreme Court

in paragraph 27 said as follows:

"27. Coming back to the case at hand, we are of the opinion that the nature of the simple injury inflicted by the accused, the part of the body on which it was inflicted, the weapon used to inflict the same and the circumstances in which the injury was inflicted do not suggest that the appellant had the intention to kill the deceased. All that can be said is that the appellant had the knowledge that the injury inflicted by him was likely to cause the death of the deceased. The case would, therefore, more appropriately fall under section 304 Part II, IPC ."

The above decision is not applicable on facts. In Murlidhar

Shivram Palekar (supra) the accused were husband and

wife. It was their contention that the wife was raped by the

deceased and on the day next when they were proceeding to

report the incident, the deceased had tried to obstruct them. A scuffle broke out and according to the accused, the

deceased had a knife on which he fell and injured himself

causing his death. The prosecution case of murder led to

conviction up to the High Court but such conviction was

converted by the Supreme Court to a conviction under

section 304 Part II, IPC . The conversion was essentially upon

the following reasons given in the judgment:

"14.........The fact that all the above witnesses saw the incidence of scuffle is not disputed; however they entered the scene only after they heard the shout of Asaram. What transpired prior to that, between the accused and the deceased has not been corroborated by anyone save the accused no.2. None of the witnesses seem to know the cause of the scuffle and neither were they able to hear the altercation that was going on between them.

Further, all the witnesses saw accused no.1 inflicting injury to deceased-Asaram by way of a knife that was later produced as the murder weapon. However, none of the witnesses have stated anywhere that the knife belonged to the accused no.1, therefore, the question that who had actually possessed the knife first is still unknown."

This Court in Noyel Barla (supra) acquitted the accused for

non-examination of two eye witnesses. The said decision is

not applicable in the present case.

The appellants have thus failed to make out any ground

for interference with the impugned order. Their plea of

conversion of conviction and acquittal is also without

substance. The impugned order is confirmed. As such the

appeals fail and are dismissed. The appellants will serve out

their respective sentences.