Suranjan Mal vs State of West Bengal

Ashim Kumar Roy, J.—In a Sessions trial appellant Suranjan Mal, Sushavan Mal and Samiran Mal were convicted under section 307 IPC and sentenced to suffer simple imprisonment for 8 years and to pay fine with default clause. The said order of conviction and sentence is under challenge in this appeal.

The aforesaid trial is an outcome of a complaint lodged by PW/1 Bijan Behari Maity. It was his case on the date of occurrence, all the convicts came together to forcibly plough their land with a tractor, at that time he, his wife Dipali Maity (PW/2) and his father Janaki Maity tried to resist them. When appellant Suranjan Mal assaulted him with an iron rod on his head and on different part of his body and after that he threw acid on his back. As his wife rushed to save him Sushavan Mal also assaulted her with a Katari on her head. His father, when tried to intervene, he was also assaulted by Samiran Mal with a bamboo stick on his head. In the meanwhile, the neighbouring people rushed to the spot and thereafter from police station the injured were removed to the hospital.

During the trial prosecution examined total 11 witnesses. However, none was examined by the defence. It was their case that they were innocent and have been falsely implicated in this case and a counter case is pending against PW/1 and PW/2 for assaulting the appellants and causing grievous hurt and for attempting to kill them.

The learned counsel appearing on behalf of the appellants assailed the order of conviction and contended that the father of the appellants was a recorded bargadar in respect of the land, where the alleged incident took place and according to him, after the death of their father, the appellants inherited the right of bargadar and regularly cultivating the said land. While they were cultivating the land, the PW/1 being accompanied by PW/2, his father and others attacked them being armed with various deadly weapons and they also sustained injuries and a criminal case was started against the complainant and his associates. He further submitted that this is a case where the complainant/parties are the aggressors and the appellants to protect their rights and save their lives and properties only resisted them. He further submitted, that subsequently at the behest of the police a story was concocted which would be evident from the fact that the FIR was lodged after several hours. He further pointed out that in this case the FIR reached the court nearly a week after the incident. He then drew our attention to the evidence of PW/1 and pointed out that although they went to the police station first before going to the hospital but no FIR was lodged. It is vehemently urged according to the prosecution case many neighbouring people rushed to the spot at the time of the incident but none was examined and the prosecution tried to prove its case by examining only the relations of the complainant. Even one Shyamapada Maity, who first took the complainant to the police station and from there to the hospital, was also not examined. It was vehemently contended that the prosecution had never proved that the injuries inflicted on the person of the victims, if cause their death, the appellant could have been guilty of murder, therefore, their conviction under section 307 IPC cannot be sustained and is liable to be set aside. Lastly, it was pointed out that before the doctor PW/8 Dr. Swapan Mondal, no allegation however been made against appellant Sushavan Mal that he took part in the assault.

On the other hand the learned counsel for the State vehemently contended that the case against the appellants has been proved beyond all reasonable doubt. He submitted this is a case based on the evidence of injured witnesses and adverted to the evidence of Bijan Behari Maity (PW/1) and his wife Dipali Maity (PW/2). He submitted both the witnesses were examined and treated by the doctor PW/8, who found both acid burn injury and lacerated injury on the vault of the head. According to him, those injuries have proved the offence punishable under section 307 IPC against the appellants. He further submitted there is no reason for the injured himself to falsely implicate any other person rather than the real offender.

The learned counsel for the de facto complainant produced the xerox copy of the certified copy of the judgment delivered in connection with S.T. 68/Mar/2004, which was the outcome of the counter case lodged from the side of the appellants against the PW/1, PW/2 and another, which is already with the record. It was then pointed out that in the said trial PW/1, PW/2 and another were tried for the offences, amongst other, punishable under section 326/307 IPC for causing injury to the appellants and were found not guilty of the charges brought against them and acquitted. The said order of acquittal was passed on November 16, 2009 and was never challenged and reached its finality.

Heard the learned counsels appearing on behalf of the parties. Considered their respective submissions. Perused the depositions of the witnesses.

This is a case, which rests on direct evidence. While Bijan Behari Maity PW/1 and his wife Dipali Maity PW/2 were the injured victims, the PW/3 Jhareswar Maity, PW/6 Amal Maity and PW/7 Kanailal Maity, the co-villagers were the eye-witnesses to the occurrence. The PW/8 Dr. Swapan Majumder examined both PW/1 and PW/2 at Contai Sub-Divisional Hospital after the incident. The PW/9 Dr. V.P. Padmini Saha is one of the doctor under whom PW/1 Bijan Behari Maity was admitted and she did skin grafting on him. PW/10 Dr. Ramen Roy was the radiologist and he proved right radius fracture sustained by PW/2 Dipali Maity with scalp injury.

So far as the incident is concerned, the defence has not disputed the same, except the mode and manner of the incident. It was the case of the defence that the appellants were bargadar in respect of the land where the incident took place and it was the PW/1 and PW/2, who attacked them when they were cultivating the land as a result they sustained grievous injuries and for that a criminal case was brought against PW/1, PW/2 and another for causing grievous injury and for attempting to murder them and the trial of the said case was pending. Now, from the case of the defence at least the occurrence stands admitted. It is also a matter of record in the said trial PW/1, PW/2 and another were acquitted and their order of acquittal reached its finality.

The key witnesses of the prosecution were the injured witnesses PW/1 Bijan Behari Maity and PW/2 Dipali Maity. According to PW/1, appellant Suranjan Mal assaulted him with an iron rod on his head and on different parts of the body and threw acid on his back and appellant Sushovan Mal assaulted his wife with a lathi and caused fracture injury. It is also his evidence that Samiran Mal assaulted his father with a lathi on his head and he also sustained fracture. The similar was the evidence of the injured victim Dipali Maity against the appellants. She not only described how she was assaulted by the appellants at the same time supported the testimony of her husband PW/1. The PW/3 Jhareswar Maity, PW/6 Amal Maity and PW/7 Kanailal Maity claimed to be present at the scene of occurrence and saw how PW/1, PW/2 and father of the PW/1 were assaulted by the appellants. They corroborated the evidence of both PW/1 and PW/2. All the aforesaid 5 witnesses were cross-examined at length but nothing could be highlighted to impeach their credit. No attempt was made by the defence to contradict them with their statements made to the police during investigation. It was already noted that to prove the injuries sustained by the victims and the nature of the injury and its site the prosecution examined PW/8 Dr. Swapan Mondal, PW/9 Dr. V.P. Padmini Saha and PW/10 Dr. Ramen Roy. Going through their evidence we find that the victims, PW/1 and PW/2 sustained fracture, burn injuries and other injuries in vital parts of their body. The PW/8 was the first doctor who attended the injured PW/1 Bijan Behari Maity, PW/2 Dipali Maity and the father of the PW/1 Janaki Nath Maity at the hospital and treated them. According to the said witness, to him all 3 injured disclosed by whom they were assaulted and the same was noted in their respective injury reports. However, we find from the evidence of PW/8 and the injury reports Ext.-2, Ext.-2/1 and Ext.-2/2 that although the appellant Suranjan Mal and Samiran Mal were named as their assailants but there was no reference to the appellant Sushovan Mal. None of the injured implicated the appellant Sushovan as one of their assailants. It is true that in the FIR subsequently lodged and in their evidence all the witnesses named him as one of the assailants but having regard to the facts that before the doctor at the earliest opportunity his name was not referred, in our opinion, so far as the involvement of appellant Suranjan Mal is concerned become doubtful and it would not be safe to sustain his conviction on the evidence forthcoming later on. Accordingly, his conviction under section 307 IPC and the sentence passed thereunder against him stands set aside and he is acquitted.

We further find from the evidence of the co-villagers PW/3, PW/6 and PW/7 that the victims were assaulted in course of altercation and quarrel between them and the appellants over the cultivation of land and the alleged incident took place about 20 years back and having regard to that while we are not inclined to interfere with the order of conviction but in our opinion the justice will be sub-served if their sentence is reduced to simple imprisonment for 5 years and to fine of Rs. 6,000/- each in default to suffer further simple imprisonment for 1 year.

In the result, this appeal stands partly allowed. While the order of conviction of the appellant Sushavon Mal is set aside, the order of conviction passed against the appellant Samiran Mal and Suranjan Mal is sustained but the sentences imposed stands modified to the extent as above.

All the appellants are now on bail. The appellant Sushovan Mal be discharged from the bail bond. So far as the appellants Samiran Mal and Suranjan Mal are concerned, their bail bonds stands cancelled. They are directed to surrender before the trial court within a month from this date and on their surrender they shall be sent to the Correctional Home to serve out the remaining part of their sentence.

In the event, they fail to comply with our above direction the trial court shall take necessary steps against them.

Office is directed to communicate this order to the trial court and to send down the Lower Court Records.

Urgent Xerox certified copy of this judgement be given to the parties, if applied for, as early as possible.

Shivakant Prasad, J.—I agree.