AI Structured Summary
Not yet generated for this judgment
Judgment
Joymalya Bagchi, J.
The Appeal is directed against judgment and order dated 24th June, 2013 passed by learned Additional Sessions Judge, Raghunathpur, Purulia in
Sessions Trial No.01 /2009 arising out of Sessions Case No.125 of 2008 convicting the appellants for commission of offence punishable under Sections
302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- each, in default to suffer
rigorous imprisonment for three months more.
The prosecution case, as alleged against the appellants, is to the effect that on 26.4.2008 around 8.00 a.m. the appellants along with other accused
persons rebuked Md. Sahir, (the victim) in filthy language. Md. Sahir raised objection. As a result, the appellants hit Sahir with fists and blows and
kicks. The female members of the accused persons instigated the accused persons to kill Md. Sahir. All of a sudden Sarbajit brought a sword from
their house and hurt Sahir on the chest, belly and neck. Appellant, Sanjit being armed with a ‘shabal’ hit Sahir on the head. Other appellants
were instigating Sarbajit and Sanjit to kill Sahir. Sahir suffered bleeding injuries. Local people shifted him to the hospital where he died. On the written
complaint of Md. Mustaque, brother of the victim, Raghunathpur P.S. Case No.36 of 2008 dated 26.4.2008 under Sections 302/34 of the Indian Penal
Code was registered against the appellants and other accused persons.
In conclusion of investigation, charge sheet was filed against the appellants and other accused persons, namely, Puspa Katka, Shyamali Katka, Manju
Katka and Sangita Katka. The case was committed to the Court of Sessions and transferred to the Court of learned Additional Sessions Judge,
Raghunathpur, Purulia for trial and disposal. Charges were framed under Sections 302/34 of the Indian Penal Code against the appellants and other
accused persons. The appellants and other accused persons pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents. The defence of the accused persons was one of
innocence and false implication. It was their specific defence of the appellants that some of them and other accused persons were injured and the
victim had been killed in exercise of their right to private defence. In conclusion of trial, the learned Trial Judge by the impugned judgement and order
dated 24th June, 2013 convicted and sentenced the appellants, as aforesaid. However, the other female accused persons, namely, Puspa Katka,
Shyamali Katka, Manju Katka and Sangita Katka were acquitted of the charges levelled against them.
Mr. Moinak Bakshi, learned lawyer appearing for the appellants argued that evidence has come on record that the accused persons were injured in
the course of the same transaction and prosecution has failed to explain away the injuries on them. Hence, the manner and course of the incident as
narrated by the prosecution witnesses is untrue and the appellants ought to be acquitted of the charges levelled against them. He also submitted that
there is a lack of corroboration with regard to the weapons used by the appellants. He further submitted that the incident occurred in the course of a
free fight and the allegation that the appellants shared common intention to commit murder of the victim cannot be said to be proved beyond
reasonable doubt. He, accordingly, prayed for acquittal of the appellants.
On the other hand, Mr. Mukherjee, learned lawyer appearing for the State with Mr. Ganguly argued that the consistent evidence of the eyewitnesses
show that the appellant Sarbajit had hit the victim with a sword on his chest and belly while appellant Sanjit had hit the victim with a sabal on his head.
Appellants, Sachin and Sarojit had pressed the victim at the time of occurrence. Hence, all of them shared common intention to cause death of the
victim. Nothing has come on record to show that the alleged injuries on the accused person were caused in the course of the same transaction. The
injuries are simple in nature. Failure to explain away such injuries, therefore, would not had prejudiced the prosecution case. Accordingly, they prayed
for dismissal of the appeal.
P.W. 1 is the brother of the victim and the de facto complainant in the case. He stated that the victim was murdered on 26.04.2008 at about 8 a.m. in
front of their house. Appellant Sarbajit Katka assaulted his brother on his head with a shabal, appellant Sanjit Katka assaulted his brother with a sword
on his abdomen, chest and neck and appellant Sachin Katka and Surajit Katka embraced him and other accused persons instigated them by saying
‘kill him, finish him, etc. Md. Sahir sustained bleeding injuries. They shifted Sahir to Raghunathpur S.D. Hospital where he was declared dead. He
submitted FIR with
Raghunathpur P.S. on 26.04.2008. The said FIR was drafted by one Narayan Bouri as per his instruction. He signed on it. In cross-examination, he
stated that their relation with the appellants was good. A dispute had cropped on the previous day regarding dragging of earth from a nearby
‘bandh’. On the day of the incident they did not take part in any altercation with the accused persons. When he reached the place of
occurrence his brother had already been murdered.
P.W. 2 Md. Saukat Ali is an eye witness to the incident. He stated that on 26.04.2008 at about 8 a.m. after taking break fast in his house he heard a
hue and cry. He found that an altercation was going on between Sahir (the deceased) on the one hand and the appellants and other accused persons
on the other hand with regard to digging of soil from a bandh. He tried to intercept the accused persons who were armed with lathi. In the course of
altercation, Sarbajit assaulted the victim with sword and Sanjit assaulted the victim with shabal on the head.
The victim fell down on the ground. At that time Sachin embraced the victim. Female accused persons were instigated the male accused persons by
saying “mar mar, mere sesh kore deâ€. Then para people took the victim to Raghunathpur S.D. Hospital where he was declared dead. Police
came to the place of occurrence and arrested the accused persons. He gave a statement to the learned Magistrate. He signed on the said statement
marked as exbt. 2 series. Police seized the blood stained sword and shabal from the house of the accused persons under seizure lists and he signed on
the seizure lists marked as exbts. 3, 4 and 5.
P.W. 3 Iftikar Alam is another eye witness. He stated that there was an altercation between Sahir and the accused persons. He found that accused
Sachin embraced the victim. Sanjit assaulted Sahir on the head with a shabal and Sarbajit assaulted the victim with a sword on his chest and abdomen.
Female accused persons instigated other accused persons by saying ‘mar mar, sesh kore de’. Sahir fell down on the ground. Police came to the
place of occurrence and arrested the accused persons. Police seized the blood stained shabal and sword from the house of the accused persons under
seizure lists and he signed on their marked as exbts. 3/1 and 4/1. He also signed on his statement made before the Magistrate under Section 164
Cr.P.C. marked as exbt. 6 series.
P.W. 4 Nisat Parvin is the wife of P.W. 1. She stated that on the date of the incident her brother-in-law was washing his face in front of their house
in a tubewell. Accused Sachin started abusing Sahir. They dragged Sahir in front of the house. Thereafter Sarbajit assaulted the victim with a sword
on his chest and abdomen and Sanjit assaulted the victim on his head with a shabal. Other persons, namely, Saukat Ali, Tahir Hossain, Ali Hossain,
Iftikar Alam, her mother-in-law and sister-in-law were present at that time. The victim fell down on the ground. The victim was hospitalized where he
was declared dead. Police came to the place of occurrence and arrested the accused persons. Police seized the weapons of offence, namely, sword
and shabal.
P.W. 6 Md. Ali Hossain deposed that he was present at the place of occurrence. He saw Sanjit assault the victim on his heasd with a shabal.
Accused Sarbajit assaulted the victim with a sword on his back. Other accused persons caught hold of Sahir and they instigated the male accused
persons to kill Sahir. Sahir was declared dead. He identified the said shabal and sword which were used as weapons of offence. In cross-examination,
he, however, admitted that there was no label on the ‘shabal’ and sword and articles were available in the market. P.W. 7 is the wife of P.W.
She also deposed that she had seen the incident. She stated that appellant Sanjit assaulted Sahir with a shabol and appelalnt Sarbajit assaulted Sahir
with a sword.
P.W. 8 Md. Amir deposed that Sahir was his maternal uncle. At the time of occurrence he was inside his room. Hearing a hue and cry he came out
from the room and found that appellant Sanjit assault Sahir on his head with a Shabal and appellant Sarbajit assaulted the victim on various parts of the
body. Other accused persons instigated the said Sanjit and Sarbajit to kill Sahir. Sahir later on died in the hospital.
P.W. 10 Md. Imraz is also corroborated the evidence of the other eye witnesses. He stated that Sarbajit assaulted the victim with a sword and other
accused persons instigated Sarbajit and Sanjit to kill the victim.
P.W. 13 Dr. A.K. Mudi deposed that he was posted at Raghunathpur B.P.H.C. at the time of occurrence, on 26.04.2008 he examined one Sakila
Banu (P.W. 7) and Saikat Ali (P.W. 2) and found injuries on their persons. They were referred to Raghunath S.D. Hospital for better treatment. The
said injury reports prepared by him was marked as exbts. 11 and 11/1. In cross-examination, he proved the OPD tickets of Sachin Katka, Puspa
Katka, Surajit Katka, Manju Katka, Sangita Katka, Sanjit Katka and Sarbajit Katka marked as exbt. ‘A’ series.
P.W. 14 Dr. Amal Nath conducted postmortem on the body of the victim. He found the following injuries:
Incised wound, sharp margin, longitudinal, ½“x ½â€xthoracic cavity lateral to midline on left side at the level of nipple.
Incised wound, sharp margin, longitudinal, 1â€x ½â€xthoracic cavity 2†lateral and1†below left nipple.
Incised wound, sharp margin, transverse ½â€x ½â€x bone deep above lefthybrlow.
Incised sound, sharp margin longitudinal 1†x ½â€x muscle deep left posterioraxillery border below shoulder.
Incised wound, sharp margin transverse 3â€x ½â€x bone deep right posteriorparietal region.
Abrasion left elbow and left knee. After dissection, left lungs and left ventricle of heart were found punctured. The injury maybe caused by both
side of sharp, pointed and hard substance like knife, dagger, etc. He opined that the cause of death is due shock and haemorrhage due to injuries
mentioned in P.M. report ante mortem and homicidal in nature.
P.W. 15 is the investigating officer in the instant case. He deposed that on 26.04.2008 he was O.C. of Raghunathpur P.S. On the basis of telephonic
information he went to the place of occurrence. He received written complaint from P.W. 1 at the place of occurrence. On receiving the complaint he
endorsed it marked as exbt. 1/1 and sent it to Raghunathpur P.S. for starting a case. During investigation he seized iron sword from the possession of
accused Sarbajit Katka under a seizure list marked as exbt. 13. He seized iron shabal from the possession of Sanjit Katka marked as exbt. 14. Both
the weapons were blood stained. He held inquest report over the body of the victim marked as exbt.15. He sent the dead body for postmortem
examination. He proved the dead body challan marked as exbt. 16. He prepared draft sketch map of the place of occurrence with index exbt.17. He
recorded the statement of witnesses. He made arrangement for recording of statement of witnesses under Section 164 Cr.P.C. He collected
postmortem report from Purulia Sadar hospital marked as exbt. 12 and submitted charge-sheet.
In cross-examination he stated that he collected medical papers of accused Sanjit, Sachin, Sarbajit marked as exbt. ‘B’ series. He deposed that
he asked aforesaid accused persons who received injuries if they were willing to submit FIR or not but they denied to submit written complaint. He,
however, did not send the offending weapons to F.S.L. From the aforesaid evidence it appears that there was a dispute between the victim, Md. Sahir
and the appellants and others over digging of earth from a nearby ‘bandh’. Over such issue on the next day i.e. on 26.4.2008 around at 8.00
A.M. while the victim was washing his face at the tubewell in front of his house, the appellants abused him. An altercation occurred. In the course of
altercation, the appellant Sarbajit brought out a sword and assaulted the victim on the chest, abdomen and neck. Appellant Sanjit assaulted the victim
with a shabal on the head. It is alleged that the appellants Sachin and Surojit had embraced the victim at the time of occurrence. It is alleged female
accused persons (who were acquitted) had extorted the male accused persons to kill the victim. The trial court did not believe the accusation against
the female accused persons as there was contradiction in the evidence of the prosecution witnesses in that regard and had acquitted them.
 The prosecution case against the appellants is sought to be proved by the ocular version of, P.Ws. 1, 2, 3, 4, 6, 7, 8 and 10. It has been argued that
there is dichotomy in the manner of assault upon the victim as narrated by P.W.1, the de facto complaint and other witnesses. While P.W. 1 stated
that Sarbajit hit the victim with a ‘shabal’ and Sanjit hit with a sword, other witnesses have deposed the other way round.
I am of the opinion that such contradiction with regard to the weapons used by the aforesaid appellants, as narrated by P.W.1 and the other witnesses
is minor. Moreover P.W.1 himself admitted he was not an eye witness as he had come to the place of occurrence after the incident. Hence I am
inclined to rely on consistent versions of PW.2, injured eye witness and other eye witnesses with regard to the manner and course of the assault on
the victim in preference to that of P.W. 1.
P.W.2 is an injured eye witness and he stated that in the course of altercation appellant Sarbojit took a sword from his house and assaulted the victim.
Appellant Sanjit assaulted the victim on his head with a shabal. As a result, the victim fell down on the ground. At that time Sachin embraced the
victim. The other injured witness in the instant case, namely P.W.7 also deposed Sanjit assaulted the victim with a shabal while Sarbajit assaulted him
with a sword.
In view of the consistent version of the injured eye witnesses with regard to the specific roles of appellant Sanjit and Sarbajit is assaulting the victim,
as aforesaid, I am of the opinion that minor contradiction in the version of P.W.1 with regard to the specific weapons used by said appellants does not
militate against the prosecution case. The evidence of the aforesaid injured eye witnesses with regard to the specific role of the appellants Sanjit and
Sarbojit in the assault has been corroborated by other eye witnesses viz., P.W.3, 4, 6, 8 and 10. Hence, I have no doubt in my mind that on the fateful
day, the appellant Sarbajit had assaulted the victim with a sword on the chest, belly and neck while the appellant Sanjit hit him on the head resulting in
severe bleeding injuries which caused his death.
It has been argued that the said incident had occurred in the course of a free fight and the appellants and others had also suffered injuries in the
course of the incident as would be evident from Ext.A and B series which had not been explained by the prosecution. Relying on these pieces of
evidence, Mr. Bakshi argued that the appellants had being initially assaulted by the victim and others and, under such circumstances, they had
exercised their right of private defence resulting in the death of the victim.
Mr. Mukherjee, learned Advocate appearing for the State argued that the injuries on the appellants and others were simple and that there is no
evidence on record that they had suffered such injuries in the course of the aforesaid incident. Ext.A and B series is silent with regard to the history of
assault or the names of the assailants. P.W.15 also deposed during cross-examination that he had asked the injured accused persons to lodge first
information report which they did not do.
In view of the aforesaid evidence on record, I am constrained to hold that the injuries on the appellants and others which were sought to be proved
through Ext.A and B series cannot be said to have been caused upon them in the course of the aforesaid incident and, therefore, failure to explain
away the said injuries would not cause a dent to the prosecution case. Furthermore, I do not find either the victim Sahir or any of his family members
were armed. P.W.14 is the Post Mortem Doctor. He found a number of severe injuries on the vital parts of the body of the victim viz., chest and
head. The weapons of assault viz., shabal and sword was seized from the appellants Sanjit and Sarbajit respectively immediately after the occurrence.
It is true that there are deficiencies in the investigation with regard to proper labelling of the seized weapons or sending them for FSL examination.
However, in view of the consistent version of the eye witnesses and the prompt seizure of the weapons of assault from the place of occurrence, I am
of the opinion that the prosecution has been able to prove that on the fateful day at 8.00 A.M., appellant Sanjit had assaulted the victim with a sword
on the chest, abdomen and neck and the appellant Sarbajit had hit him on the head with a shabal.
Although there is evidence of some altercation, keeping in mind the nature of weapons used by the aforesaid appellants and the severity of injuries
caused by them on the vital parts of the body, I have no doubt in my mind that they had shared the common intention to kill the victim. More so, I am
fortified to come to such conclusion as there is no evidence to show that the injuries on the appellants were caused in the course of the alleged
incident.
Coming to the roles of appellants Sachin and Surojit, it is alleged they had embraced the victim at the time of assault. I find that there is not even an
iota of evidence that the appellant Surojit had embraced the victim. Although some of the witnesses deposed that the appellant Sachin had embraced
the victim, such versions of the witnesses are contradictory to one another. It is also true that there was an altercation between the parties and even if
it is accepted that the appellant Sachin had embraced the victim, it cannot be ruled out that such act on his part was to desist the victim from assaulting
him and the other appellants and not on the score of sharing common intention with other appellants to cause murder of the victim.
In view of the contradictory and inconsistent evidence on record with regard to the roles of appellant Sachin and Surojit in the instant case, I am of the
opinion that it is difficult to come to a firm conclusion that they had shared the common intention to murder the victim unlike that of the other
appellants viz., Sanjit and Sarbajit. Accordingly, the conviction and sentence of appellant Sanjit and Sarbajit are upheld and that of appellant Sachin and
Surojit are set aside. The appeal is partly allowed.
The period of dentition, if any, undergone by the appellants during the period of investigation, enquiry and trial shall be set off against the substantive
sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure. The appellants Sachin and Surojit shall be forthwith released from
custody upon executing a bond to the satisfaction of the trial court for a period of six months in terms of Section 437A of the Code of Criminal
Procedure. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.Urgent Photostat Certified copy of
this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.