Albinus Minz and Others vs State of West Bengal

Indrajit Chatterjee, J—This court is hearing this appeal as against the judgement and order of conviction dated 10-10-2012 passed by the learned Additional Sessions Judge, Fast Track 1st Court, Siliguri, Darjeeling in Sessions Trial No. 1/2010 arising out of Sessions Case No. 29(S)2008 wherein both the appellants were convicted in respect of the charge punishable under Sections 326 read with Section 34 and Section 307 read with Section 34 of the Indian Penal Code. Both the accused appellants were sentenced to suffer rigorous imprisonment for five years each and to pay fine of Rs. 1000/- each, i.d., to suffer further rigorous imprisonment for three months for the offence punishable under Section 326 of the Indian Penal Code and both the accused appellants were also sentenced to suffer rigorous imprisonment for five years each and directed to pay fine of Rs. 2000/- each, i.d., to suffer further rigorous imprisonment for six months each for the offence punishable under Section 307 of the Indian Penal Code. The court ordered a set off and also ordered that both the sentences will run concurrently.

This Sessions trial arose out of Phansidewa P.S. Case No. 185 of 2007 dated 23/09/2007 under Sections 326/307/34 of the Indian Penal Code. The FIR was lodged by P.W.1, Sarita Tudu, wife of the victim with the said police station on 23-09-2007 at about 14-05 hrs. giving rise to that police station case as stated above. The FIR was written in Bengali script by one Goutam Roy, P.W. 8. In the FIR, it was claimed by the de facto complainant that the incident took place at her house on 21-09-2007. She disclosed at the time of trial that in the evening her husband that is the victim, Balku Tudu (P.W.11) returned to his house after the day''s work at about 6-00 p.m. and thereafter went out of the house. At about 11-00 p.m., the present accused Albinus came to the house of P.W.1 under the influence of liquor and then she requested him to take his meal but he refused and thereafter the said accused and the victim started quarreling with each other. There was also a free fight in between them and hearing the alarm PW 1 and the local people that is PWs 4 and 5 came and they took Albinus, the appellant No. 1 to their house.

The victim was then taking rest in the ''verandah'' of his house and soon thereafter both the appellants that is Albinus and his wife Sunita came to his house with one "Kalam Chhuri" and the appellant No. 1 caught hold of the victim and the appellant No. 2 started assaulting the victim by that weapon of offence and due to that, the victim received injuries on his head, left hand and on the back. He sustained profuse bleeding. The de facto complainant raised alarm and then the victim was taken to Phansidewa hospital with the help of the local people and from there he was transferred to North Bengal Medical College & Hospital at Siliguri (herein after called as N.B.M.C & H). One explanation of delay was given along with the FIR stating therein that the de facto complainant was busy with the treatment of her husband.

After the registration of the case, the investigation was taken up by the Investigating Officer, P.W.14. During the course of the investigation, he examined the available witnesses, prepared the sketch map of the place of occurrence, collected the bed-head ticket and the injury report of the victim, seized the alleged weapons of offence as per the seizure list dated 28-09-2007 at 22-05 hrs. It may be mentioned that both the accused persons surrendered at Phansidewa police station on 28-09-2007 at 21-15 hrs. and as per that seizure list, the weapon of offence was seized from the possession of the accused Albinus Minz and Sunita Minz from the house side bush of Sarita Tudu, P.W.1, the de facto complainant. The size of that weapon of offence was 20" long along with butt of the weapon.

After completion of investigation, the Investigating Officer of this case submitted charge sheet against both the accused persons for the offence punishable under Sections 326/307 read with Section 34 of the Indian Penal Code. The case was committed to the Court of Sessions and ultimately it came to the trial court and S.T. No. 1/2010 was registered. Before the trial court as many as 15 witnesses were examined and several documents were marked as Exhibits including the FIR, two seizure lists, some pages of the bed head ticket, sketch map with index. The defence preferred not to adduce any oral or documentary evidence. The defence did not make out any specific case but claimed that they were framed in this case and were falsely implicated.

Out of these fifteen witnesses, three witnesses claimed themselves to be eyewitnesses, i.e., P.W.1, P.W.11 that is the victim and their son, P.W.12. The public witnesses like P.W. 2, P.W.3, P.W.4, P.W.5 and P.W.6 were all declared hostile and P.W.7 and P.W.10 did not support the prosecution case in toto. P.W.15 is a doctor who came to prove the injury report but he failed to say who was the attending doctor. PW 8 is the scribe of the FIR. Other witnesses are the I.O, the person who filled in the formal FIR and one employee of N.B.M.C&H. I have already stated regarding the result of the first round of this legal battle.

Mr. Chatterjee, learned Advocate, appearing for the defence submitted that only the evidence of P.W.1 and P.W.11 are material to be considered by this court. He took me to the evidence of these two witnesses to show that the evidence of P.W1 and P.W.11 are contrary to each other and he submitted that in such a case, the contradiction will speak heavily as against the prosecution. He further submitted that there is no evidence coming from the mouth of P.W.1 or P.W.11 that their son, P.W.12 actually saw the incident and as such the evidence of P.W.12 cannot be believed.

Regarding the recovery of the weapon of offence, he submitted that both the seizure list witnesses have not supported the story of recovery as made out by the Investigating Officer and as such, this recovery matter has not been proved beyond doubt. Regarding the evidence of P.W. 2, P.W.3, P.W.4, P.W.5 and P.W.6, Mr. Chatterjee submitted that all these witnesses were declared hostile and they being the neighbours could have stated against the accused, had anything taken place in the manner as depicted by the prosecution. Regarding the evidence of P.W.10, he submitted that even though this P.W.10 took the victim to the rural hospital, but nothing was disclosed to this witness and as such, this conduct of P.W.1 is very doubtful. He also took me to the evidence of P.W.8, the scribe of the FIR vis-�-vis P.W.1 to show that the P.W.1 deposed that he found Goutam Roy on the street and she requested him to write the FIR whereas Goutam Roy deposed that P.W. 1 came to his house and requested him to scribe the FIR. He submitted that this contradiction may be taken care of by the court. As regards the evidence of P.W.11, he submitted that P.W.11 did not depose that he fell down on the ground and thereafter he was assaulted by the appellant No. 2 whereas P.W.1 candidly deposed that after the victim fell down on the ground, he was assaulted by the appellant No. 2. P.W.1 also deposed that the appellant No. 1 at time of the incident told his wife "Mere Fello, Mere Fello" whereas P.W.11 did not use that term when he was examined on oath. He submitted that Ext. 6 was interpolated as in the carbon copy there is no Bengali portion like "Rogir Abastha Ashanka Janak, Ote Mrityu o Hote Pare" and as such it was submitted by Mr. Chatterjee that the de facto complainant party was so desperate to put both these accused persons behind the bar for a considerable period of time.

Regarding the medical evidence, that is, P.W.6 and P.W.15 Mr. Chatterjee submitted that these witnesses did not practically examine the victim and PW 15 saw only the stitched wound of the victim. He fairly admitted that PW 15 only prescribed some oral medicines to the victim. He further submitted that P.W.15 was not the best person to say that the injury of the victim was such that it would have endangered the life of the patient and that such injury was grievous in nature.

Mr. Chatterjee also submitted that the incident as depicted by the P.Ws cannot secure the confidence of any ordinary prudent man as to why the appellant No. 1 caught hold of the victim and his wife assaulted him.

Regarding the ingredient of Section 326 vis-�-vis Section 320 of the I.P.C., he submitted that if the evidence of the doctor is not convincing then, there was no reason to convict the accused person in respect of the charge punishable under Section 326 of the I.P.C. As regards, the conviction under Section 307, he submitted that there was no ingredient to say that the accused person intended to finish the victim even if the entire incident is admitted. He further submitted that Dr. Partha Sarathi Giri, was the best person to prove what type of injuries the victim suffered but unfortunately, the prosecution did not examine that doctor. He further submitted that the accused-appellant No. 1 is in custody for almost three years and accused-appellant No. 2 had already suffered imprisonment for a period of 266 days till she was released on bail by this Court. He ended his argument by submitting that at best the act of the accused persons may be covered under Section 324 of the I.P.C. and this may be treated as his alternative argument. He further submitted that accused appellant No. 1 is in custody for more than two and half years and that is enough punishment even if this court is satisfied that the charge was proved as against this accused also for the offence punishable under Section 324 of the Code.

On behalf of the prosecution it was submitted by Mr. Ananda Keshri appearing on behalf of the state by taking me to the evidence of the Dr. Amrendranath Sarkar (PW 15) who was then posted as Associate Professor Department of Surgery, N.B.M.C&H at Siliguri where he was acting as the visiting surgeon of unit No. 2 of Surgery, to convince this Court that this doctor was the overall in charge of the said department and it cannot be said that he was not aware regarding the condition of the patient and as such his evidence regarding the condition of the patient and the injuries he noticed on the body of the victim cannot be brushed aside. He submitted that this doctor deposed that he was well aware regarding the hand writing and signature of the Dr. Partha Sarathi Giri and that this PW 15 even prescribed oral medicines to the victim marked as Exbt. 6/4. He submitted that the treatment sheet marked as Exbt. 6/1 which this doctor consulted will prove that the injury which the victim sustained behind the chest would have injured the lungs endangering the life of the patient considering the size and the nature of the injury. Learned prosecutor also submitted that PW 15 candidly deposed that the injury was grievous in nature. Regarding the argument of defence that the evidence of PW 1 and the victim PW 11 cannot be believed as not a single person of the locality came forward to support the case of the victim party that actually the appellant No. 1 came to the house of PW 1 and that there was quarrel in between him and the victim and the public witnesses took that appellant No. 1 to their house. It was his argument that in these days the public witnesses are reluctant to come forward to depose in favour of the prosecution unless they have any interest in the said trial.

He submitted that the learned Trial Court duly convicted the appellant in respect of the charge punishable under Section 326 read Section 34 of the Code. On my asking he submitted that for the same victim both Sections 326 and 307 of the Code cannot be attracted. He submitted that the quantum of sentence may be fixed by this Court considering the fact that this male accused is in custody for about two and half years and that the appellant No. 2 being the female accused remained for 266 days.

This court on hearing the learned Advocate appearing on behalf of the parties and considering the evidence on record is satisfied that the main witnesses of this case are PW 1 and PW 11 and the expert evidence of PW 15. The documentary evidence which also needs discussion are the FIR and the bed head tickets. This court is satisfied that PW 12 did not see the incident as neither PW 1 nor PW 11 deposed in chief that PW 12 saw the incident. PW 1 deposed that the incident took place when all her sons were sleeping. This court did not find anything unusual even if she did not disclose as to the incident to PW 10. It may be either treated as omission or natural conduct of PW 1. On scrutiny of the evidence of PW 1 this court is satisfied that what the wife of the victim deposed before the trial court was the true picture of he crime. As per her evidence is not after the victim returned back from the days work on that date he left outside the home and returned home with appellant No. 1 at about 11 p.m. This witness requested this appellant even to take dinner. This shows that the relationship between this accused and the de facto complainant party was no doubt cordial at least even at that point of time. This witness deposed that thereafter there was altercation between her husband and the present accused appellant No. 1 and there was free fighting between them. This witness also deposed that the villagers came to the P.O and stop such fighting and Hira Minz (PW 5) and Sunil Horo (PW 4) took the accused to his house. This witness further deposed that after sometime accused appellant No. 1 and accused appellant No. 2 again returned to our home and Sunita Minz had one "Kalam Chhuri" in her hand. She further deposed that appellant No. 1 caught hold of the victim from behind and accused appellant No. 2 Sunita Minz assaulted him with that "Kalam Chhuri" and the victim shouted "Mere Fello, Mere Fello". This witness further deposed that the appellant No. 2 made an attempt to assault the victim with such knife but the victim stood up and as such he got injury at his left arm, and at his fore head and his hand. This witness further deposed that when the victim fell down on the earth the appellant No. 2 assaulted him with knife and as such the victim got injury on his back.

I have gone through the evidence of PW 11 meticulously. Except the minor omissions about which the defence argued that there is nothing to disbelieve this witness. The omissions noted cannot take away the evidence of this witness.

As regards the seizure of "Kalam Chhuri" as proved by the IO of this case this court is of the opinion that this story cannot be believed as PW 1 Sarita Tudu did not depose regarding the recovery of such weapon of offence. The seizure list marked as Exbt. 1 goes to show that such seizure was made from the bush of the house of Sarita Tudu, wife of Balku Tudu on 28.09.2007 at 22.05 hours but this story as claimed by the I.O has not been supported by PW 1 and she was the best person to say regarding the seizure of weapon of offence particularly when PW 4 and PW 7 have not supported prosecution case regarding recovery of that weapon of offence.

It is true that in this case the public witnesses have not supported the prosecution story. In these days the public witnesses have developed apathy in either coming to court and if they at all come to court they prefer not to support the prosecution story particularly when the fate of the case is not touching him or his family members. I can rely upon the decision of the Apex Court as reported in State of A.P. Vs. S. Rayappa and Others, AIR 2006 SC 3709 : (2006) CriLJ 1616 : (2006) 2 JT 392 : (2006) 2 SCALE 321 : (2006) 4 SCC 512 : (2006) AIRSCW 929 : (2006) 2 Supreme 71 wherein the Apex Court held that it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. It further held that criminal cases are kept dragging for years to come and the witnesses are harassed a lot, they are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. The Apex Court further categorically held that the public witnesses are not interested to depose before the Court and this fact must be borne in mind.

The decision of the Apex Court as reported in State of U.P. Vs. Madan Mohan and Others, AIR 1989 SC 1519 : (1989) CriLJ 1485 : (1989) 2 Crimes 467 : (1989) 2 JT 158 : (1989) 1 SCALE 1087 : (1989) 3 SCC 390 was delivered naturally in 1989 when the morality of the public or the human values did not err like this as its stands now in the years 2015. Thus the decision of the Apex Court in Madan Mohan (supra) may safely be countered by the decision of the Apex Court as passed in Rayappa (supra).

Regarding the value of an injury as witness this court can safely rely upon on the decision of the Apex Court as reported in ( Subal Ghorai and Others Vs. State of West Bengal, (2013) 4 AD 635 : (2013) CriLJ 3626 : (2013) 2 Crimes 137 : (2013) 4 JT 527 : (2013) 5 SCALE 275 : (2013) 4 SCC 607 : (2013) AIRSCW 3627 : (2013) 2 Supreme 597 ) wherein it was observed that interested witnesses or related witnesses cannot be thrown out and such witnesses are not necessarily a bad witness. The Apex Court in this case specifically held that if the witness is related to the deceased then there is less chance of his leaving aside the real assailants. Thus the value of one injured witness in a criminal trial is very vital.

I may cite here the decision of the Apex Court as reported in Bhajan Singh @ Harbhajan Singh and Others Vs. State of Haryana, AIR 2011 SC 2552 : (2011) 3 Crimes 80 : (2011) 7 JT 141 : (2011) 3 RCR(Criminal) 641 : (2011) 6 SCALE 630 : (2011) 7 SCC 421 wherein the Apex Court held that the testimony of such a witness cannot be ignored as such a witness comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone.

Thus, there is no reason to disbelieve the version of PW 11 whose evidence has been well supported by PW 1 that his wife, who according to me was very much present at the scene of crime at the time of the incident. The argument of the defence that PW 1 was not at the scene of the incident is not convincing to me.

The evidence of PW 11 has been well supported by the medical papers which was however marked ''X'' for identification collectively being the bed head tickets of the said victim who was admitted in N.B.M.C&H in special department within II (s) Folder No. 22987 at 02:30 am on 22/09/2007 and was discharged on 26/09/2007. The bed head ticket also contains one drawing of the victim showing the places of assaults on the body of the victim. The main wound what the victim sustained was on his left back side and it was oblique wound measuring 4"x 2". This drawing also shows that the victim also got injury on the "triceps partial injury" which was "sub-cut injury". In the bed head tickets there is also discharge certificate which was marked as exhibit 6/5 and one prescription of PW 15 which was marked as exhibit 6/4. This Court is also not unmindful of the fact that the bed head tickets also contained one referral slip issued by PHANSIDEWA BPHC EMERGENCY in respect of this victim dated 22/09/2007 wherefrom it is also clear that the victim was assaulted, got injury by knife over "right hand forearm and back wound deep stab".

It is true that in the bed head tickets there are signatures, handwritings and findings of some doctors. Only PW 15 came to depose and what he deposed was duly referred in details by Mr. Keshri and I have noted that while noting his argument. Thus, as per the evidence of this doctor one Dr. P.S. Giri whose signature or handwriting was known to him operated the patient, that this witness also examined the victim and advised oral medicines as per prescription marked as exhibit 6/4. The witness further deposed from the operative treatment sheet (drawing of the injury of the victim) about which I have already stated. This witness deposed from the said treatment sheet, exhibit 6/1, that the injury behind the chest would have injured the lungs endangering life of the patient. Considering the size and nature of the injury the doctor also opined that the injury was grievous in nature.

Now the question is whether the bed head tickets of a Government Hospital is a public document? It was held by Rajasthan High Court in Smt. Top Kanwar v. LIC as reported in 1975 RLW 161 at Pages 161-167 that bed head ticket is a public document. This decision was relied upon by the same High Court in Rajasthan State Road Transport Corporation and Others Vs. Devilal and Others, (1991) ACJ 230 : AIR 1991 Raj 29 : (1990) 1 WLN 665 . Thus the bed head tickets of the victim was rightly admitted into evidence and the objection raised by the defence as regards the marking of those documents as exhibits ought not to have been raised by the defence and court should not have accepted that objection. This Court is of the opinion that the bed head tickets of the victim can safely be relied upon by this Court.

Thus, considering the evidence both oral and documentary, the argument put forward by the counsel of the parties and the facts and circumstances this Court is satisfied that the incident about which PW 1 and PW 11 deposed actually happened in the manner as deposed by them. The faint argument of the defence as regards the contradiction between PW 1 and PW 8, the scribe of the FIR regarding the place of writing of the FIR cannot travel too much to cast any doubt as to the prosecution case.

Considering the evidence on record this Court is satisfied that the appellant No. 1 caught hold of the victim and the appellant No. 2 inflicted blows by knife. This shows the common intention about which this court is satisfied that they shared common intention. This Court is also satisfied that the injury which the victim suffered was no doubt grievous in nature and it was dangerous to the victim. The victim was admitted in the hospital on 22/09/2007 and was discharged from the hospital on 26/09/2007. There is nothing on record to show that whether thereafter the victim received any treatment or he was confined for a considerable period of time. I am told that this appellant No. 1 is in custody in connection with this case from 10/10/2012 till this day and prior to this the accused appellant was in custody from 29/09/2007 to 08/11/2007 and the appellant No. 2 also remained in custody for such period that the from 29/09/2007 to 08/77/2007. The LCR further shows that both the appellants were taken in custody on the date of delivery of judgment that is 10/10/2012 and the appellant No. 2 was released on bail as per order dated 13/05/2013 in CRAN NO.986 of 2013 I do not know on which date actually this female accused was released on bail after acceptance of the bail bond as the that order. Thus, this female accused remained in custody for more than 250 days (subject to further scrutiny by the proper authority) but will assess this time while granting set off.

Thus this Court is satisfied that both the accused persons committed offence punishable under Section 326 read with Section 34 of the Code and as such the finding of guilt on that count only is accepted and affirmed by this Court. The injuries sustained by the victim, as per the bed head ticket is not enough to prove an offence under Section 307/34 of the IPC. Section 307 of the Code is one higher degree of offence compared to Section 326 of the Code. How far for the same victim Section 307 as well as Section 326 may be attracted? At the time of framing of the charge there may be an alternate charge under Section 307 of the Code and Section 326 of the Code, but conviction on both count cannot be supported. Thus, the accused appellants are fit to be acquitted in respect of that order of conviction and sentence imposed by the trial court under Section 307 read with Section 34 of the Code.

Considering the role of the appellant No. 1 this Court is satisfied that the present appellant No. 1 be released with the imprisonment which he has already undergone including the fine amount of Rs. 1000/- in default to suffer further SI for one month. The female accused appellant was deprived of the company of her husband for more than 2 1/2 years. She is a mother of three children. I have already stated that she remained in custody for more than 250 days.

In awarding term imprisonment no court should ask for "a tooth for a tooth". The punishment which the court will award must be commensurate with the nature of crime vis-�-vis the suffering of the accused convicts. They are fighting this legal battle since September, 2007. The appellant No. 2 is a home maker. She was 30 years when she was examined under Section 313 Cr.P.C. She is not one habitual offender and as such some leniency may be shown to this appellant.

This Court is satisfied that interest of justice would be better served if this appellant No. 2 is sentence to suffer SI for one year and to pay fine of Rs. 5000/- in default to suffer SI for further 3 months for the offence punishable under Section 326 read with Section 34 of the IPC, if this fine amount is paid then whole of the said amount will go to PW 11 as compensation. Appellant No. 2 will be entitled to get the set of under Section 428 of the Cr.P.C.

The bail granted to appellant No. 2 as per CRAN No. 986 of 2013 is hereby cancelled. The surety bond is forfeited. The said accused appellant No. 2 must surrender before the learned trial court to serve out the remaining part of the sentence within 15 days from the service of notice on her. The trial court is directed to inform this appellant No. 2 through Officer-in-Charge of Phansidewa Police Station, District - Darjeeling about this order. The trial court may also take up the matter with the ACJM, Siliguri, to inform the appellant No. 2 Sunita Minz, about the direction of this Court, through the sureties.

The seized article be destroyed after the period of appeal is over.

Thus, this appeal is answered in part and disposed of accordingly without cost.

The department is directed to transmit the LCR along with a copy of this judgment to the learned Trial Court at the earliest.