Dharani Bouri vs State of West Bengal

Joymalya Bagchi, J.—The appeal is directed against judgment and order dated 29.11.1985 passed by the learned Sessions Judge, Purulia, in Session Trial No. 25 of 1985 convicting the appellant for commission of offence punishable under section 304 Part II of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years.

The prosecution case, as alleged, is that a marriage ceremony was held at Sarbagan Mahalla within Purulia (T) P.S. on occasion of marriage of one Sasadhar Bouri son of Jugal Bouri with the daughter of Babulal Bouri. Dilip Bouri, the victim, son of Nakul Bouri, PW 1, was unwilling to go to Sarbagan with the marriage party. The appellant who is his cousin insisted him to accompany them and, accordingly, both of them along with other members of bridegroom party went to attend the marriage ceremony in a Truck. It is alleged that there was a quarrel between the appellant and Dilip Bouri at Sarbagan. At around 3 p.m. the appellant called the victim/Dilip Bouri to one side. Anil Bouri, PW 3 another member of the bridegroom party, followed them. PW 3 saw the appellant stab Dilip Bouri by the side of a pan shop. He caught hold of the injured and raised hue and cry. Other persons came to the spot. The appellant stated that he had committed a bad act but requested the other members of the bridegroom party not to narrate the incident to the police. The victim was taken to the Purulia Sadar hospital and the appellant accompanied him. The victim was admitted to the hospital on 10.03.1984. On the next day Nakul Bouri, PW 1 and Basana Bouri, PW 2, parents of the victim, came to the hospital. Around 4 p.m. the victim, Dilip Bouri, regained his sense and narrated to his parents that the appellant had stabbed him. He however requested his parents not to file any case against the appellant as he was a dangerous person and might harm his elder brother. Subsequently, the victim died in the hospital. On 15.03.1984, an unnatural death case was started. Post mortem was held over his dead body and the victim was cremated. Thereafter brothers of the appellant started threatening other sons of Nakul Bouri, P.W. 1, that they would be killed if a case is started. Finally, on 19.03.1984, PW 1 lodged written complaint at Purulia (Town) Police Station resulting in registration of Purulia(T) P.S. Case No. 7 dated 19.03.1984 under section 302 of the Indian Penal Code against the appellant. In conclusion of investigation, charge sheet was filed under section 302 of the Indian Penal Code against the appellant. The case, being a sessions triable one, was committed to Court of Sessions, Purulia for trial and disposal. Charge under section 302 of the I.P.C. was framed against the appellant. The appellant pleaded ''not guilty'' and claimed to be tried.

In course of trial, prosecution examined as many as 14 witnesses and exhibited a number of documents to prove its case. The defence of the appellant was one of innocence and false implications.

In conclusion of trial, the Trial Judge by the impugned judgment and order dated 29.11.1985 convicted the appellant for commission of offence punishable under section 302 of the I.P.C. and sentenced him to suffer rigorous imprisonment for five years. Hence, the present appeal.

Mr. Guha, learned counsel appearing as amicus curiae submitted that there is inordinate delay in lodging the First Information Report. Medical papers at Purulia Sadar Hospital show that the victim had stated that he suffered injury due to accidental fall. He further submitted that after the death of the victim the appellant has been falsely implicated in the instant case by suppressing the real incident. Dying declaration allegedly made by the victim to P.W. 1 and PW 2 is most improbable as such fact is not disclosed in the First Information Report. Admission of guilt by the appellant to PW 3 also bristles with artificiality as the latter did not narrate such fact to the Doctor or the police authorities immediately after the incident. On the other hand, it was stated that the victim suffered injury due to accidental fall. He accordingly, prayed for acquittal of the appellant.

Mr. Banerjee, learned Additional Public Prosecutor appearing for the State argued that evidence on record clearly showed that the victim suffered stab injury and died at the hospital. Plea of accidental death is, therefore, false and contrived to hush up the real incident. PW 7, driver of the Truck, claimed that no one was injured when the members of the bridegroom party alighted from the Truck. He submitted that in view of dying declaration of the victim to PW 1 and PW 2 and the ocular version of PW 3 who is the eye witness to the incident, there is no escape from the conclusion that the appellant caused the injury on the victim. Accordingly, he prayed for dismissal of the appeal.

PW 1, Nakul Bauri, is the father of the victim, Dilip Bouri. He is the de facto-complainant in the instant case. He deposed that the victim along with the appellant and other members of the bridegroom party had gone to attend to a marriage ceremony of one Jugal Bouri with the daughter of one Babulal Bouri at Sarbagan Purulia. On the next day, he heard that his son, Dilip Bouri, suffered injury from a rod of the truck and was admitted to hospital. He and his wife went to Purulia Sadar Hospital between 9/10 a.m. when he found his son was unconscious. He found on enquiry from PW7, driver of the truck that there was no accident in the said truck. In the afternoon, at around 4 p.m. on the self-same day, victim regained his sense and reported that he had been stabbed by the appellant. The victim however stated that PW 1 should not to file any case. The victim died on 15.03.1984 and the dead body of the victim was cremated. The brothers of the victim started threatening that they could kill the sons of P.W. 1 if any case is filed. Finally on 19.03.1984 he lodged written complaint with the police station marked Exhibit 1. Police came to his village in the afternoon and he was interrogated. In cross-examination, he has stated that he could not remember whether he had stated in the First Information Report that the victim reported him and also his wife that the appellant had stabbed him and requested him not to file a case.

PW 2, Basana Bouri, is the mother of the victim, Dilip Bouri. She has corroborated the evidence of PW 1.

PW 3, Anil Bouri is an eyewitness of the incident. He was a member of the bride groom party and went with the appellant and the victim to attend the marriage ceremony at Sarbagan in a truck. They reached there at 9 p.m. When they got down from the truck, no one sustained injury. They took their Tiffin. Thereafter, there was a quarrel between the appellant and Dilip Bouri and they scuffled between themselves. PW 3 and others separated them. After 15 or 20 minutes the appellant called Dilip and PW3 followed them. The appellant took Dilip by the side of a pan shop. PW 3 stood at a distance of 2 or 3 cubits from the said place. The appellant was standing behind Dilip. It was a moonlit night and PW3 saw that the appellant stabbed the victim, Dilip, in his abdomen. PW3 saw Dilip fall down and caught hold the victim. The appellant was shouting and told PW3 that he had done a bad act. He requested PW3 to take the injured to the hospital. In cross-examination, PW3 stated that the said pan shop was at a distance of about 7 or 8 cubits towards north from the place where all of them were sitting. The appellant shouted from behind the pan shop and PW 3 was holding the appellant when other people came there. He did not state before the Investigating Officer that he was at a distance of 2 or 3 cubits behind the appellant. He stated that he narrated the incident to other people.

PW 4, Jaber Rajak, is another member of the bridegroom party. He stated that they came in a truck and reached the place at 8 p.m. or 9 p.m. At the time when they got down from the truck, no person was injured. They took Tiffin. There was altercation between the appellant and the Dilip Bouri. PW3 and the appellant called them. They went there. They found that the PW 3 was holding Dilip and there was bleeding injury in the abdomen of Dilip. On being questioned the appellant stated that he had done some bad act. They took the victim to a hospital. They attempted to inform the police but the appellant said that police need not be informed. In cross-examination, he stated that the place where Dilip fell down was at a distance of 5 or 6 cubits from the place where they were having tiffin.

PW 5, Abinash Mahato, is another member of the bridegroom party. H has corroborated the evidence of PW 4.

PW6, Dhiru Rajak, has been tendered for cross-examination.

PW 7, Putu Dharipa, is the truck driver who took the bridegroom party to Sarbagan. He stated that nobody was injured while getting down from the truck.

PW 8, Jugal Bouri, has been tendered for cross-examination.

PW 9, K.K. Chowdhury, was the Officer-in-charge attached to Purulia Town Police Station. He received the written complaint from PW 1 and drew up formal part of First Information Report. He endorsed the case for investigation to Sub-Inspector, J. Chakraborty.

PW 10, Dilip Kumar Chandra, was a Doctor attached to Purulia Sadar Hospital. He examined the victim on 12.03.1984. He held postmortem examination over the dead body of the appellant. He found the following injuries:

" One T shaped stitched incisional would over left side of abdomen, measuring 5 1/2" x 4 1/2".

Penetrating wound over left side of back at its lowest position, close to vertebra, measuring 1 1/4" x 1/2" x abdomen deep, directed towards right side. There was no wound of exit.

On dissection I found clots at the left pleura at its base congestion. Peritoneum congested and full of blood clots. Left kidney with capsule haemorrhaging".

He stated that the cause of death was due to penetrating injuries over the left side of back and post operative shock which is ante mortem and homicidal in nature. He further stated that these injuries are sufficient to cause death in the ordinary course of nature.

In cross-examination, he stated that Dr. Nemai Bhattacharyya was the surgeon in the hospital. He wrote the bed head ticket, marked Ext. B. He further stated that injury report is signed by Dr. Sukumar Chatterjee, marked Ext. A.

P.W. 11, Dr. S. Santra proved the bed head ticket and stated that the patient was admitted him on 10.3.1984 at 11.05 hours. He has proved the bed head ticket, Ext. 4. He wrote the injury report.

In cross-examination, he stated that the words ''stab injury over back'' is written in different ink and not in his hand writing.

P.W. 12 is the Constable, Dhirendra Nath Panda. He took the dead body for post mortem examination.

P.W. 13, S.I., J. Chakraborty is the Investigating Officer. He stated that he went to the place of occurrence. He prepared a sketch map. On 19.3.1984, he examined Nakul Bouri and recorded his statement. He also examined Basana Bouri. Nakul Bouri produced the garments of Dilip Bouri, the victim and he seized the garments of the victim, marked Material Ext. 1. He arrested the appellant. He filed the charge sheet.

The prosecution case has been severely criticised on the ground that there is inordinate delay in lodging the First Information Report. It is argued that though the victim made the alleged dying declaration to P.Ws. 1 and 2 on 11.3.1984 and expired on 15.3.1984, the First Information Report was lodged as late as on 19.3.1984. It is further argued that in the First Information Report, there is no whisper of dying declaration made by the victim to P.Ws. 1 and 2. It is true that there is some delay in lodging the First Information Report. Circumstances as emanating from the prosecution evidence, however, give adequate explanation for such delay. Initially, the appellant told P.W. 4 and others not to inform the police. Accordingly, false information was given before the hospital authorities that the victim had suffered injury due to accidental fall. Falsehood of such explanation transpires from the evidence of P.W. 7 (truck driver) that no one was injured while alighting from the truck. P.Ws. 3, 4 and 5 have also narrated that no one was injured in the truck. It further appears from Ext. B that the Doctor at Purulia Hospital opined that upon examination of the said injury, Doctors were of the prima facie view that the victim suffered stab injury from the back and directed the matter to be reported to the officer-in-charge of the Police station to commence a criminal case. The appellant was present during the treatment of the victim and it has come from evidence that he had requested others not to intimate the police about the real state of affairs. Even P.Ws. 1 and 2 were initially informed that the victim had suffered injury from accidental fall. It is the case of P.W. 1 that when the victim narrated the incident to him, he requested him not to inform the Police. Ultimately, victim died from such injury on 15.3.1980 and the brothers of appellant started threatening other sons of P.W. 1 not to lodge criminal case. Finally P.W. 1 mustered up courage and lodged the case on 19.3.1984. Delay in lodging the First Information Report is, therefore, attributable initially to the presume erected by the appellant upon P.Ws. 3, 4 and others to hush up the incident and thereafter due to the threats held out by brothers of the appellant that other sons of P.W. 1 will be killed if such case was lodged. Such delay being adequately explained in the facts and circumstances of the case, I am not of the view that prosecution case ought to be disbelieved on the premises that there is inordinate delay in instituting the First Information Report in this case.

Next is the issue whether the victim suffered the injury due to accidental fall or at hostile hands. It has transpired from evidence that immediately after the incident, the appellant told P.Ws. 3, 4 and 5 that he had done a bad act and requested them not to tell the Police. Appellant accompanied the victim and others to the hospital and was present during the treatment of the victim. Owing to the pressure from the appellant, the real incident was suppressed and it was reported to hospital authorities that the victim suffered accidental injuries. Moreover, upon medical examination the Doctor treating the patient recorded that the victim had suffered stab injury from the back and even requested to report the matter to the Police (Ext. B). As discussed earlier, due to pressure from the appellant the matter was not immediately reported to Police authorities. Moreover, P.W. 7, the truck driver stated that no one was injured while alighting from his truck. Other members of the marriage ceremony namely, P.Ws. 3, 4 and 5, also deposed that no one was injured in the truck. In view of the aforesaid medical assessment of the injuries on the victim as evident from Ext. B and other attending facts and circumstances as transpiring from the prosecution evidence, as discussed above, I am of the firm view that victim was stabbed from behind and did not suffer accidental injury.

Finally, come to the issue as to who was the author of such injury. P.W. 3 is an eye witness of the incident. He was a member of the bride groom party. He stated that they came to the marriage ceremony around 9.00 P.M. They had tiffin together. At that time, the appellant and the victim quarreled and scuffled amongst themselves. They were separated. Thereafter, the appellant called the victim behind a pan shop, which was 7/8 cubits away from the place where they were sitting. P.W. 3 accompanied the appellant and was 2/3 cubits away from the place of occurrence and in the moonlight saw the appellant stab the victim from behind. P.W. 3 immediately held the injured victim. Others came to the place of occurrence. The appellant admitted that he did a bad thing but requested others not to report the incident to the police. The victim was thereafter shifted to the hospital.

Evidence of P.W. 3 is corroborated by P.Ws. 4 and 5 who were also members of bride groom party. Cross-examination of the said witnesses has not elicited anything to the contrary.

Accordingly, I am of the view that the evidence of P.W. 3 who was the most natural witness of the incident has clearly established the appellant as the assailant. His evidence finds support from that of P.Ws. 4 and 5 who were post occurrence witnesses and had immediately arrived at the place of occurrence. Appellant also admitted that he had done a bad act in presence of the said witnesses and requested them not to inform the incident to the Police. The appellant was a relation of the victim and a close friend of P.Ws. 3, 4 and 5. Accordingly, on his request the said witnesses initially floated false theory of accidental injury which stands belied from medical reports, Ext. B and other evidence as discussed above.

I am, however, skeptical about the purported dying declaration made by the victim to P.Ws. 1 and 2 as claimed by the said witnesses. P.Ws. 1 and 2 had come to the hospital on the next day i.e. 11.3.1984. The victim had been admitted to the hospital on the night of 10.3.1984. It is the case of the P.Ws. 1 and 2 that the victim was unconscious on 11.3.1984 around 9/10 A.M. when they arrived at the hospital. They, however, claim that around 4.00 P.M., he regained consciousness and narrated the incident to them but requested them not to divulge the same to the police. It appears from the bed head ticket that the victim was continuously on tranquilisers from the time he was admitted in the hospital. It also appears from the bed head ticket that the victim had been operated upon on 11.3.1984 itself. It is also the evidence of P.Ws. 1 and 2 that the victim was unconscious when they came to the hospital. It is, therefore, most improbable that the victim would have regained consciousness in the evening particularly when he had been operated upon on the self-same day and had been put on continuously heavy sedation. Moreover, such fact is not disclosed in the First Information Report lodged by P.W. 1. It is unlikely that such a vital fact omitted by P.W. 1 in the First Information Report. It is true that the P.W. 1 was interrogated on the selfsame day again. However, there is nothing in the evidence either P.W. 1 or P.W. 13, I.O. that the latter narrated the factum of dying declaration in the course of such interrogation. Court cannot look into contents of statements recorded under Section 161 of the Code of Criminal Procedure unless the same has come on evidence during trial.

Hence, I am of the view that it would be unsafe to rely on the so called dying declaration of the victim made to P.Ws. 1 and 2 in the hospital. However, in view of the consistent evidence of the eye witness P.W. 3, the corroborative evidence of P.Ws. 4 and 5, I have no doubt in my mind that the appellant had stabbed the victim from behind resulting by the appellants in the grievous injury and ultimate death. The delay in lodging the First Information Report has also been duly explained the facts and circumstances of the case.

In view of the aforesaid discussion, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt. Accordingly, conviction of the appellant under Section 304 part II of the Indian Panel Code is upheld.

Coming to the issue of sentence, I find the incident occurred three decades ago. The appellant struck a blow upon the victim in the course of a quarrel. He dos not have any criminal antecedent.

Accordingly, I reduce the sentence imposed upon the appellant and direct him to suffer rigorous imprisonment for three years. The bail bond of the appellant is cancelled. The appellant is directed to surrender before the trial Court within a month from date to serve out the sentence as aforesaid, failing which trial court shall take appropriate action for execution of the sentence in accordance with law.

The period of detention undergone by the appellant during investigation, enquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure Code.

I record my appreciation for the able assistance rendered by Mr. Debapratim Guha in disposal of the appeal.

Let a copy of the judgment along with the lower court records be sent down forthwith.