Sanat Manna vs State of West Bengal

Joytosh Banerjee, J.—This appeal is directed against the order of conviction u/s 304 Part II read with Section 34 of the Indian Penal Code against the Appellants, namely, Sanat Marina", Amar M''anna, Lakshan Chandra Manna and Lichubala Manna and against the sentence imposed on them on such conviction, namely, R.I. for 7 years each.

Briefly stated the prosecution ease is that on March 27, 1991 Gour. Manna the deceased was supervising the masonary work which was going on in their houses in connection with raising of a boundary wall. At about 2.30/3 P.M. of the same day there was a trouble regarding construction of the said boundary wall between the aforesaid Gour Manna and the Appellants and one Lichubala Manna, the wife of Appellant Lakshan and mother of other two. According to the allegation raised in the case, the Appellants and Lichubala came to the spot armed with bati, hansua, Katari and attacked Gour Manna and on being attacked Gour Manna cried out for help and being attracted by such outcry his brothers and mother came to his rescue but they too were assaulted. It is the further allegation that as a result of the assault launched on him, Gour Manna sustained serious bleeding injuries and for this he was at first removed to local P.H.C. and due to the seriousness of the injuries sustained he was thereafter removed to Arambag Sub-divisional Hospital and finally he was taken to N.R.S. Hospital, Calcutta. Subsequently, the victim died in his house after being released from the hospital due to the injury sustained.

In order to bring home the charge, the prosecution in the case examined in all 11 witnesses including 3 doctors, namely, P.W. 8 Sudhanshu Jana, P.W. 9 Dr. P. Mondal and P.W. 10 Dr. S.P. Kundu. P.W. 11 is the I.O, of the case, who on completion of the investigation submitted the chargesheet against the Appellants and Lichubala.

The learned court below on consideration of the total evidence on record and the arguments made before him by the learned Advocate for both sides came to a finding that there was a trouble between the parties regarding construction of boundary wall, and the same was established through the evidence of the material prosecution witnesses and the same was admitted by accused/Appellant Lakshan Manna, the father of the 2 other Appellants. On being examined u/s 313 Code of Criminal Procedure. He also held that in the incident complained of, it was established that victim Gour Manna sustained injuries on his neck and scalp, on being assaulted with bati and hansua, both sharp cutting weapons. Relying on the medical evidence, the learned Judge further came to a conclusion that the injuries sustained by the victim Gour Manna were not only serious in nature but as a result of such injuries his lower portion got paralysed. The learned Judge placed his reliance on the evidence of Dr. Mondal (P.W. 9), specialist in Neuro-Surgery, in coming to such conclusion. As the change of survival of the victim became nil he was discharged on the hospital and was allowed to return back to his village. The learned Judge discussed the medical evidence to come to a finding that the injuries sustained by the victim were serious in nature and were in vital parts of the body. Thereafter he proceeded to consider the individual involvement of the Appellants, and come to a finding that prosecution established the charge raised u/s 304 Part II read with Section 34 Indian Penal Code beyond reasonable doubt and proceeded to convict the Appellants after observing with reasons why the other accused Lichubala should be dealt with under the provisions of Probation of Offenders Act.

The only question before us is whether the order of conviction as noted above and the sentence awarded on the basis of such conviction should be interfered with ?

Admitted position here is that both the posecution party and the accused persons are close relatives: Victim Gour Manna and P.W. 1 Sibu Nath Manna, P.W. 3 Japan Manna are the sons of Gopi Nath Manna. The accused/Appellants Sanat Manna, Amar Manna are the sons of Lakshan Manna, the brother of the said Gopi Nath Manna the father of prosecution witnesses. They are residents of Parul under P.S. Pursurah in 1he district of Hooghly. All the parties live in the same house but the said house property had already been partitioned between two brothers but still then they had boundary dispute and according to the version offered by the prosecution the incident complained of, was the out come of boundary dispute between the parties. The incident has been unfurled through the evidence of eye witness, namely, P.W. .1 Sibu Nath Manna, P.W. 2 Shital Chandra Manna, cousin of P.W. 1, P.W. 3 Tapan Manna, P.W. 4 Lilabati Manna wife of the said Gopi Nath Manna mother of P.Ws 1 and 3, P.W. 5 Bilash Chandra Manna a cousin of P.Ws 1 and 3. From their evidence it has been disclosed that on the date of incident, the prosecution party started raising the boundary wall and practically completed the same by 2.30/3 P.M. and the victim Gour Manna was alwo present at the spot. The uncle of the witnesses, the accused Lakshan came to the spot white the work was going on and he became furious when some cement and sand used in the maso-nary work fell on his person. He started to abuse the mason, then the victim Gour asked him not to abuse the mason in this, way. This further enraged, the accused who raised allegations that through the boundary wall, the prosecuting party had encroached over his land. At this, the victim wanted to show the boundary itself which had been fixed by the intervention of the local people. Then Amar Manna cought hold of the victim, Gour Manna and accused Lakshan and Sanat launched assault on him with bati and hansua. The victim raised cry and thereafter his mother P.W. 4, Tapan P.W. 3 came along with the wife of the victim, the people of the locality also came and cought hold of the accused persons. After the assault the victim became senseless and he was found bleeding profusely. In that condition he was first taken to Serampur P.H.C. under Pursurah P.S. and the P.H.C. referred the patient to Arambag Hospital. From the Arambag Sub-Divisional hospital the patent was sent to a Calcutta hospital, namely. Nilratan Hospital where he remained admitted,,, for about 3 months. The cross-examination of the witnesses,'' who have come here to establish the incident and to implicate the accused persons with such incident goes to show that according to the defence version there was a political enmity between the families pf accused Lakshan Manna and the prosecuting party and for that reason the case was falsely started against the accused persons and they were falsely implicated. In course of the cross-examination of the P.W. 1 defence even tried to suggest, the circumstances under which the victim might have sustained the injuries seen in his person by suggesting that the victim was a heavy drinker and under the influence of alcohol he used to sleep at different places. But the defence did not proceed further in the matter. Regarding enmity it can be said that P.W. 1 in his evidence denied such suggestion but admitted that his uncle accused Lakshan was active member of C.P.I. (M). Most other members of Manna''s families in an around the house of P.W. 1 are supporters of Congress (I) and the witnesses admitted that one Gobinda Manna who contested the vote on Congress (I) ticket was known to the witness. Members of his family seek help of Gobinda regarding ail kinds of affair. But it is hardly acceptable that because this background, the accused/Appellants would be falsely implicated in a case like this. On going through the evidence on record very carefully regarding the incident and the part played by the individual accused persons, it transpires that the evidence of P.W. 1 gets substantial corroboration from the oral testimonies of other eye witnesses as noted above and there is no reason to disbelieve these witnesses. No doubt P.W. 1 in his evidence has admitted that there was some delay-in lodging the F.I.R., but at the same time he has given a reasonable explanation for such delay by adding that soon after incident he had been to the local P.S. But he was advised by the police officer on duty to come on the next day morning. The explanation goes unchallenged and there is no reason why the same should not be accepted. It is well established that credibility of testimony, oral and circumstantial depends considerably on a judicial evolution of the totality, not isolated scrutiny. In the instant case, witnesses examined from the said of the prosecution are related to each other, but that cannot be a ground of rejection of their evidence in the facts and circumstances of the case. It has already been pointed out that the admitted background of the prosecution story is that the occurrence took place when after the partition between the two brothers, the family of one of the brothers proceeded to construct a boundary wall, demarcating their portion. Besides the brothers and the mother who have been members of the same family two cousins of both the parties, have also been examined. They have stated specifically that they were present at the spot when the incident complained of took place and such assertion, in the admitted background, cannot be unacceptable. The trend of cross-examination goes to indicate that the defence wants to take the opportunity of non-examination of neighbouring witnesses including the elder brother of P.W. 1 who is a practicing quack. In this connection, an old decision of this Court in Santosh Mondal v. State 1983 Crl. L.J. 773 should be referred. In that case only one neighbour was examined although there were many others. The court observed; taking a note of the present day condition, which is even more relevant in the current situation and it reads as follows:

Experience tells us that the witnesses, even those who have witnessed the occurrence are sometimes reluctant to get involved and thereby incur the wrath of the assailant or his associates. Therefore mere absence of some likely witnesses may not always be looked upon with suspicion particularly when the evidence on record is by itself sufficient to bring home the charge.

In the instant case, it has already been seen that the prosecution has examined number of eye witnesses, who have given a clear picture of the entire incident in which the victim sustained the injuries including the background under which such incident took place. From such incident, it is found that Appellant Amar Manna caught hold of the victim Gour Manna and the two other Appellants, namely, Lakshan and Sanat launched assault on the victim with the help of bati and hansua. While Lakshan assaulted the victim with bati, Sanat assaulted such victim with hansua. It has been further received from the oral testimonies of the eye witnesses that soon after the incident, the victim was taken to Serampur P.H.C. under Pursurah P.S. and from their he was removed the Arambag Hospital and finally from such hospital the victim was removed to Calcutta Hospital for the purpose of better treatment. The evidence of Lilabati Manna (P.W. 4) further disclosed that hearing the cries raised by the victim she along with his son Japan (P.W. 3) came out to find accused Lakshan assaulting the victim Gour Manna with bati on his head and accused Sanat assaulting the victim with hansua. P.W. 10 Dr. S.P, Kundu at the relevant point of time was Medical Officer attached to Serampur P.H.C. According to him Gour Manna was produced before the doctor at about 2.30 P.M, On examination, the doctor found scalp injury over the occipital region about 6-inches in length which was caused by a sharp cutting weapon. The doctor opined that the same was a incised injury. Another injury was found just below the neck over the vertibra column, the same was also incised injury. The doctor further disclosed in his evidence that the patient was conscious but he was feeling no sence on the lower part of his body. It is the specific evidence of the witness that he found the injuries sustained by the said person, which were serious in nature. So the patient was referred to Arambag Sadar Hospital. The witness faced the cross-examination from the defence but nothing has been elucidated in such cross-examination for which the evidence of the doctor should be rejected.

From the evidence of P.W. 6 Dr. B. Ghowdhury, Professor National Medical College, Department of Surgery, it transpires that on March 27, 1991 attached to the same hospital when victim Gour Manna was admitted in the hospital with injuries. It was disclosed in such evidence that as injuries were in an around the neck and also over the occipital region, the patient was referred to Neurology Department and was admitted there under Dr: P. Monda. He further disclosed the patient was initially admitted in the Surgical Ward under his care and he was subsequently transferred to the aforesaid department under Dr. P. Mondal. There was ho cross-examination from the side of the defence. Doctor P. Mdndai is P.W. 9 who at the relevant point of time was attached to National Medical College as Lecturer in the department of Neuro-Surgery. Victim Gour Manna was admitted Under his care on March 27, 1991 and the said patient was discharged on May 13, 1991. The evidence of the witness disclosed that at the tirrie of such admission, the patient had incised injuries over the nap of the neck. There was Cerebro Spinal Fluid leakage from the said injuries. The patient had under gone on operation and the condition of the patient was very poor, having bed-sore on his back side. Due to such injuries such patient was unable to move his hands and legs. It is the specific evidence of the witness that in such cases, majority of the patients in this country die. But the patient was discharged from the hospital as there was nothing to offer by way of treatment to such patient. The cross-examination goes to show that the witness clearly opined that the injuries seen in the person of the victim could not be caused due to fall. He clearly opined in the event of fall, it could be expected that the victim would sustain the injury on the spinal cord- The witness expressed his inability to give any opinion whether the said patient could have survived if he was operated upon within 24 hours. The witness further disclosed that he did not advise for holding a Medical Board.

Thus from the evidence on record, it is found that the victim Gdur Manna sustained injuries, serious in nature, as a result of assault launched on him by the Appellants. He sustained injuries in an around the neck and also over the ''-''occipital region. In this way, the medical evidence fully corroborates the oral testimonies of the prosecution witnesses and in that background, it can be said that in the incident complained of, the victim who died later on, sustained serious injuries on his person, on being assaulted by sharp cutting weapons by the Appellants.

Now, in the instant case, the main question is whether under the facts and circumstances, the Appellants can be convicted u/s 304 Part II of Indian Penal Code or not. Section 304 Part II applies when 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. Now, if the victim died while he remained admitted in the hospital, then it would have been said without any difficulty, having regard to the nature of the injuries sustained by such victim that the Appellants launched the assault on the victim with the knowledge that the same was likely to cause death but without any intention to cause death or without any intention to cause such bodily injury as was likely to cause death. But in the instant case, the evidence has been led to show that the victim was released from National Medical College Hospital on May 15, 1991 after being admitted there on March 27, 1991. From the evidence of Dr. Sudhanshu Sekhar Jana (P.W. 8), it transpires that the said victim died in his house on July 5, 1991 that is to say long after the discharge. Unfortunately in the judgment impugned, the learned Additional Sessions Judge did not consider whether the death of the victim was a direct result of the assault launched on the victim by the accused persons or not. The prosecution has relied much on the evidence of P.W. 8 Dr. Sudhanshu Jana to establish that the victim died as a result of the assault launched on him by the accused persons. The evidence of the said witness indicated that he was a Medical Practitioner having a Chamber at SodhpUr, P.S. Pursurah and the victim Was under his treatment after he came back from the hospital. He further disclosed that he medically examined the patient 4/5 times before his death and on his death he also issued a death certificate. In the cross-examination he disclosed that the victim was under his treatment from June 16, 1991 to July 5, 1991 that is to say long after the victim had been discharged from the hospital, the doctor had the occasion to treat the victim. Here it should be pointed out once again that the victim as per evidence led by the prosecution was discharged from the hospital on May 15, 1991 and the doctor P.W. 8 started to treat the victim on and from June 16, 1991 that is to say one month after such discharge. So it cannot be said, in the facts and circumstances of the case, that the victim died as a result of the assault launched on him by the accused persons.

From the discussion above, it is evident that the prosecution has successfully proved in this case that the Appellants launched assault on the victim with the help of sharp cutting weapons and as a result of it, the victim sustained serious injuries on his person. It is established here that on being assaulted by the Appellants thus the victim was finally removed to National Medical College Hospital in Calcutta where he remained admitted for the period from March 27, 1991 to May 15, 1991. Therefore, the hurt suffered by the victim was grievous one as the same fell in the category under cl. 8, in Section 320 of Indian Penal Code. This is more so in view of the clear evidence of P.W. 6 under whom the victim was admitted in National Medical College Hospital for the purpose of treatment. It is needless to repeat here the physical condition of the victim when he was admitted under the doctor, was grave. On going through the total evidence of the doctor an impression is created that the patient was found in a very poor shape. He had to under-go an operation even after that his condition was not much improved. He was also suffering from bed sore. The doctor specifically expressed his view that the patient was discharged as there was no chance of his recovery. So when the victim was discharged he was not recovered and therefore, it can be said that as a result of the injuries sustained by him in the incident complained of, the life of the patient was endengered and he was unable to follow his ordinary pursuit during the period he remained admitted in the hospital. It follows that the accused/Appellants who were armed with dangerous weapons like bati and hansua caused grievous hurt to the victim and the Appellant Amar shared the common intention of causing such grievous hurt as he caught hold of the victim and in this way helped the others to launch assault with the weapons.

In the aforesaid circumstances, I feel no hesitation to hold that the prosecution here has successfully established that the accused persons caused grievous hurt to the victim and therefore, the Appellants should be convicted u/s 326 Indian Penal Code instead of Section 304 Part II Indian Penal Code. Consequence to such conviction for a lessor offence, in my considered opinion, the sentence of R.I. should be reduced to 7 years from the R.I. awarded by the learned trial court.

In the result, the appeal succeeds in part. The accused/Appellants are convicted u/s 326 read with Section 34 Indian Penal Code and sentenced to suffer R.I. for 7 years each. Since the accused/Appellants are on bail, they are directed to surrender before the Chief Judicial Magistrate, Hooghly to serve out the sentence within one month from the date of receipt of this order in the court of Chief Judicial Magistrate, Hooghly, in default their attendance should be secured through issuing warrant Of arrest.

Let a copy of the judgment be sent to the Chief Judicial Matistrate, Hooghly, for information and necessary action.

Nure Alam Chowohury, J.

I agree.