Jayprakash Shaw vs State Of West Bengal

Joymalya Bagchi, J

As the appellant has served out the substantial portion of the sentence imposed upon him and as the records have arrived before this court, with consent of the parties, the appeal is taken up for hearing.

The appeal is directed against the judgment and order dated 20th August/23rd August, 2016 passed by the learned Additional District & Sessions Judge, Chandernagore, Hooghly in Sessions Trial No. 61 of 2013 [Sessions Case No. 57 of 2013] convicting the appellant for commission of offence punishable under Sections 341/324/307 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one month for the offence punishable under Section 341 IPC, to suffer rigorous imprisonment for one year for the offence punishable under Section 324 IPC and to suffer rigorous imprisonment for ten years and to pay fine of Rs.1000/-, in default, to suffer rigorous imprisonment for one month more for the offence punishable under Section 307 of the Indian Penal Code; all the sentences to run concurrently.

The prosecution case as alleged against the appellant is to the effect that on 15th June, 2003 at about 01:30 P.M. the appellant hit the victim namely, Kashinath Neogy (PW1) on the left side of his shoulder and thereafter tried to murder him by trying to strike at his throat with a vojali. Kashinath caught the vojali and suffered bleeding injury on his hand also. Local people apprehended the accused at the spot along with the vojali. Kashinath was shifted to hospital where he was treated. He lodged written complaint at the police station resulting in registration of Chandernagore Police Station Case No.31 dated 15.06.2003 under Sections 341/324/307 of the Indian Penal Code. In conclusion of investigation, charge-sheet was filed against the appellant and charges were framed against him under Sections 341/326/307 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 7 witnesses and exhibited a number of documents to prove its case. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the judgement and order dated 20th August/23rd August, 2016 convicted and sentenced the appellant, as aforesaid.

Mr. Moinak Bakshi, learned advocate appearing for the appellant submits that the version of the injured witness (PW1) is a product of embellishment. The incident occurred in the course of an altercation and the other eyewitnesses have not stated that the appellant had aimed at the throat of the victim. Nature of injuries suffered by PW1 are not life threatening and the ingredients of the offence punishable under Section 307 IPC are not disclosed. He accordingly, prayed for acquittal of the appellant.

On the other hand, Mr. Arun Kumar Maity, learned Additional Public Prosecutor along with Mr. Mirza Firoj Ahmed Begg, learned advocate, appearing for the State, argued that the appellant had repeatedly attacked the victim (PW1) with a vojali. Evidence of PW1 is clear, convincing and corroborated by the other witnesses. Hence, the appeal is liable to be dismissed.

PW1 is the star witness. He is the victim and the de-facto complainant in the instant case. He deposed that on 15th June, 2003 at about 01:30 P.M. he was at his confectionery-cum-ice-cream parlour at Jyoti More, Chandernagore. Appellant suddenly attacked him on his left shoulder with a vojali. He turned towards the appellant. Thereupon, the appellant tried to strike at his throat. He raised his hand and suffered injury on his palm. Appellant had earlier visited his shop during Durga Puja and demanded money. On refusal he threatened him with dire consequences. He was hospitalised at Chandernagore for treatment. He lodged written complaint (Exhibit-1)

Evidence of the injured witness (PW1) is corroborated by his brother (PW4) and his nephew (PW6).

PW4, Ujjwal Neogy stated that the appellant struck PW1 on his back with a vojali and when PW1 turned around he again struck with the vojali which hit the left shoulder and the forearm of the victim. He and others caught the miscreant at the spot. The victim was taken to the hospital for treatment.

PW6, Raju Ghosh deposed the appellant was a rickshaw puller and used to come to the shop and demand money from PW1 for purchasing liquor. On the relevant day, he demanded money from PW1. There was a verbal altercation. Suddenly the appellant struck his uncle with a vojali. As a result his uncle suffered bleeding injuries. He was brought to the hospital. They apprehended the miscreant at the spot. Police arrived at the spot and seized the vojali.

PW3 and PW5 are post-occurrence witnesses.

PW3, Sibu Rajak deposed the appellant was apprehended at the spot. He heard about the incident from the injured witness (PW1).

PW5, Ajit Kumar Chatterjee is a signatory to the seizure of the vojali from the place of occurrence.

PW2, Dr. Soma Sur is the doctor who treated the victim at the hospital. She noted the following injuries :-

(1) Two were at the shoulder region. Measurement of first injury - length 3 inch X depth 1½ inch. Measurement of second injury - length 1½ inch, it was superficial having no depth.

(2) Injury on back was measuring 1 inch and superficial.

(3) Injury on right hand measuring 1 inch length and ½ inch depth.

She proved the injury report.

From the aforesaid evidence on record genesis of the prosecution case appears to have been established beyond doubt.

It can be concluded with reasonable certainty that on 15th June, 2003 at about 01:30 P.M. the appellant came to the shop of PW1 and demanded money. PW1 refused and in the course of hot altercation, the appellant hit PW1 on his back and thereafter on his left shoulder and hand. Accordingly, conviction of the appellant under Sections 341/324 IPC cannot be faulted.

With regard to the charge under Section 307 IPC, it is argued that injuries suffered by the victim (PW1) do not appear to be grievous or life threatening. However, one cannot lose sight of the fact that to bring home the said charge, primary focus is on the intention of the assailant to commit murder and the nature of injury which is not the sole consideration. PW1 stated that the appellant initially attacked him from the back and struck at his shoulder. When he turned around, PW1 claimed that the appellant had sought to strike him on the neck. He raised his hand and suffered injury on his palm. None of the other eyewitnesses i.e. PW4 & 6, however, corroborated PW1 with regard to the fact that the appellant had tried to strike at his neck. On the other hand, two injuries were found on the shoulder region of the victim (PW1) and other injuries were found on the back and the right hand of the victim. In view of the fact that the claim of the injured witness (PW1) that the victim had sought to strike at his neck is not corroborated by other witnesses and as the attending facts and circumstances of the case also do not give rise to such an irresistible conclusion, I am of the opinion that the factual matrix of the case does not establish beyond reasonable doubt that the appellant had attempted to kill the victim (PW1).

On the contrary, evidence has come on record that the appellant, a habitual drinker, had demanded money from the victim (PW1). As the later had been refused, in a fit of rage, he attacked the victim without any pre-meditation or the requisite mens rea to kill him.

Hence, I am of the opinion that the appellant may be extended the benefit of doubt and acquitted of the charge under Section 307 IPC.

As the appellant had undergone more than the substantive sentences awarded to him on the score of committing offences punishable under Sections 341/324 IPC, I direct that the appellant be forthwith released from custody, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure.

The appeal is partly allowed.

Period of detention, if any, undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.

Lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action.

Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.

I agree.