Kartick Paul vs State Of West Bengal & Ors.

Joymalya Bagchi, J.

The appeal is directed against the judgment and order dated 28th February/2nd March, 2013 passed by the learned Additional Sessions Judge, 7th

Court, Barasat, North 24-Parganas in Sessions Case No. 21 (12) 06 [Sessions Trial No. 1 (5) 07] convicting the appellant for commission of offence

punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.10,000/-, in default, to

suffer rigorous imprisonment for six months more.

The prosecution case as alleged against the appellant is to the effect that on 20th July, 2006 at around 10:00 P.M. appellant, Kartick Paul had a dispute

with his wife over family matters. Thereafter they went to sleep. In the early hours of the next day there was a hue and cry and the appellant was

seen going away from the room. His wife lay in bed with bleeding injuries on her head writhing in pain. She was shifted to hospital. Over the incident,

brother of the appellant, Bijoy Krishna Pal (PW5) lodged written complaint resulting in registration of Ashokenagar Police Station Case No. 140 dated

25th July, 2006 under Sections 326/307 IPC. After a lapse of six weeks the victim expired. In conclusion of investigation, charge-sheet was filed

against the appellant under Section 302 of the Indian Penal Code. The case being a sessions triable one was committed to the Court of Sessions and

transferred to the Court of the Additional Sessions Judge, 7th Court, Barasat, North 24-Parganas for trial and disposal.

Charge was framed under the aforesaid provision of law against the appellant. The appellant pleaded not guilty and claimed to be tried. In the course

of trial, prosecution examined 12 witnesses and exhibited a number of documents. The appellant during his examination under Section 313 of the Code

of Criminal Procedure claimed he was not present at the place of occurrence and had gone to Burdwan in connection with his work. However, no

witness was examined to probabilise such plea of alibi. In conclusion of trial, the trial Judge by the impugned judgement and order dated 28th

February/2nd March, 2013 convicted and sentenced the appellant, as aforesaid.

Mr. Sabyasachi Chatterjee, learned advocate appearing for the appellant as well as Ms. Meenal Sinha, learned Amicus Curiae, argued that the

prosecution case has not been proved as the witnesses who saw the appellant leave the room on the fateful day are untrustworthy. PW1 did not

mention the source of light by which he saw the appellant while the evidence of PWs 2 and 3, the minor sons of the appellant, appear to be tutored.

Evidences of other witnesses suffer from various contradictions and/or embellishments. What was the weapon of offence is unclear and has not been

established in the instant case. Post-mortem report was not exhibited and the cause of death has also not been established beyond reasonable doubt.

They accordingly, prayed for acquittal of the appellant.

Mr. Saswata Gopal Mukherjee, learned Public Prosecutor along with Mr. Partha Pratim Das, learned advocate, appearing for the State submitted that

the evidence of the prosecution witnesses particularly, P.W.2, the minor son of the appellant, is wholly trustworthy. They have unequivocally stated

that the appellant was sleeping with the victim in the room when she suffered fatal injuries on her head. The appellant was seen running away from

the room in the early hours of the morning by his own son (PW2). Thereafter the victim succumbed to her injuries. No cross-examination was

advanced on behalf of the appellant that the victim had died for any cause other than the injuries inflicted by him. Hence, the appeal is liable to be

dismissed.

Let me examine the rival versions on the basis of the evidence on record. P.W.1, Naresh Chandra Pal deposed that on 21.7.2006 in the morning, he

heard a hue and cry and he rushed to the house of Kartick Pal and noticed that Kartick Pal was running away from his house. He went inside the

house and found that the wife of Kartick was lying on her bed with bleeding injury on her head. Elder brother of Kartick reported that Kartick had

assaulted his wife. In cross-examination, he stated that he was examined by the police at 7.00 a.m. on 25.7.2006. In the house of Kartick there were

two rooms. He heard a hue and cry at around 4.00 a.m., that is, at dawn.

P.W.2, Amit Pal was one of the sons of the appellant. He deposed that four years back, his father struck a blow on the head of his mother while she

was sleeping. He was also sleeping with them. When he woke up his mother was feeling uneasy due to assault suffered by her and his father left the

room. He further deposed that he was sleeping in the room with his two brothers, mother and father. He reported the incident to his uncle and aunt

(pisi and pisemasai). During the life time of his mother, his father used to quarrel with her and used to assault her.

In cross-examination, he deposed that his uncle looks after him. One of his brother is at home and the other brothers are at the house of his uncle. The

house belongs to his father. Bijoy Krishna Pal and Dhruba Pal were unemployed at the time of occurrence. They were in joint mess. There was

electricity in their house. He used to lie on the bed keeping a space separate for his parents. The door of the room was made of wood. His uncles

used to reside in the adjacent room.

P.W.3, Sumit Pal is another son of the appellant. He deposed that he was also sleeping with his brother Amit Pal and his parents on the fateful night.

Hearing commotion when he woke up his brother P.W.2 told him that his mother had sustained bleeding injuries on her head. His elder brother told

that his father struck his mother. It was in the morning. In cross-examination he stated that the door of the room was made of wood and was closed at

night. It cannot be closed from outside. He further deposed that he had come from his uncle’s house at Daulatpur. He stated that his uncle and

aunt did not tell him what to depose.

P.W.5, Bijoy Krishna Pal is the brother of the appellant. He deposed that he and another brother Dhruba Pal resided in the house of Kartick Pal.

Dhruba is mentally retarded. Rita Pal wife of Kartick Pal died two years ago. She had three sons. One of his sons was living with him whereas the

others were residing in a children’s home. The victim was taken to P. G. Hospital. He lodged a written complaint. He proved the written

complaint, Ext.2 and his signature thereon. At that time, he was declared hostile by the prosecution. In cross-examination, he, however, admitted the

contents of the written complaint.

P.W.6, Subodh Pal is the brother-in-law of the appellant. He deposed that the incident occurred at 4.00 A.M. He was informed by Dhruba that Rita

Pal was lying in an injured condition, He immediately rushed to the place of occurrence and saw that Kartick Pal was fleeing away with chopper. He

saw Rita Pal was unconscious and lying on her bed with bleeding injuries. He heard that she was killed by Kartick. He along with others took Rita to

Ashokenagar Hospital and thereafter to Barasat Hospital and ultimately to P. G. Hospital. The offending chopper was seized by the police under a

seizure list where he put his signature. He proved his signature marked Ext.3/1. He also identified the chopper in Court, material Ext.1.

P.W.9, Kalpana Pal is the sister of the appellant. She deposed that she was informed by eldest son of Kartick. P.W.2 told that his father assaulted his

mother on the head. P.W.8, Bikash Pal was a Panchayat member of the locality. He stated that he found the victim lying on the bed with bleeding

injuries on her head. The victim had informed him about her disputes with her husband and had communicated that she might be killed. P.W.4, Dr.

Tonmoy Roy was attached to Ashokenagar State General hospital. On 21.7.2006 he examined Rita Pal. He deposed that the patient party reported

that at 4.00 a.m. on 21.7.2006 patient was struck with a wooden rod on the head. He found the patient unconscious and restless. General condition

was very poor. On inspection, it appeared there was a fracture of skull in front of the right upper part of occipital region mostly in the parietal region.

There was laceration of scalp and brain matter was protruding out of the wound. He referred her to another hospital for better treatment. He proved

the injury report, Ext.1.

P.W.7, Dr. Chandan Roy was a Medical Officer at S.S.K.M. Hospital on 22.7.2006. He examined the victim. C.T. Scan of brain was done at the

hospital. Scan showed gross fracture of the skull in right parietal region with several fracture fragments. Brain matter was coming out from the

wound. It was a severe head injury. Patient was in no condition to make lucid statement. He proved the injury report prepared by him and his

signature thereon, Ext.4/1. P.W.10, Supra Chakraborty was a police officer attached to Bhowanipore Police Station. After the death of the victim, she

conducted inquest over her body and proved the inquest report, Ext.5. P.W.11, Harendra Nath Sardar was the duty officer of Ashokenagar Police

Station at the material point of time. He received the written complaint of P.W.5 and drew up the formal First Information Report, Ext.7.

P.W.12, S.I. Chittaranjan Das is the investigating officer in the instant case. He deposed that during investigation he visited the place of occurrence,

prepared rough sketch map of the place of occurrence. He examined witnesses. He recovered the iron chopper. He proved the seizure list, Ext.3/2.

He collected the injury report of Rita Pal from Ashoke Nagar General Hospital. The victim Rita Pal had expired on 14.9.2006. He collected the post

mortem report of Rita Pal and submitted charge sheet under Section 302 of the Indian Penal Code.

 From the aforesaid evidence on record it appears that the appellant and the victim, who were married to each other, were sleeping in the same

room on the night of 20.07.2006. In the early hours of the next day, that is, on 21.07.2006 the victim was found with severe bleeding injuries on her

head. Three children of the couple were sleeping with them. Two of them have been examined in the instant case as P.W. 2 and P.W. 3. P.W. 2, in

his deposition, stated that there was a quarrel between his parents at 10p.m. on 20.07.2006. Thereafter they went to sleep. In the early hours of the

next day he woke up hearing a scuffle and found that his mother lay in the bed with severe bleeding injuries on her head and her father left the room.

P.W. 3, the younger brother, also woke up and was informed by P.W. 2 that their mother had been assaulted by his father. Evidence of the aforesaid

witnesses appear to be most natural and convincing. They are the children of the couple and were sleeping with them in the room at night. They have

no reason to falsely implicate their father and I am unable to accept the contention of the learned Counsel appearing for the appellant that they have

been tutored by their relations. On the other hand, P.W. 3 unequivocally rebutted such suggestion by stating that he has not been tutored to depose in

Court.

There is also no evidence on record that there was enmity between the appellant and other relations, who had custody of the children, so as to

probabilise a case of tutoring. In the face of such clear and convincing evidence with regard to the presence of the appellant with the victim in the

room on the preceding night and his hasty departure in the dawn of 21.07.2006 when his wife lay in bed with severe bleeding injuries on her head as

narrated by his own children, I am unable to accept the alilbi taken by him during his examination under Section 313 of the Code of Criminal

Procedure that he was not at the place of occurrence and was at Bardhaman at the material point of time. It is trite law that alibi, if pleaded, is to be

probabililsed by the defence. No witness was examined on behalf of the appellant in order to establish such plea. Evidence of P.W. 2 and P.W. 3, the

children of the appellant, have been fully corroborated by their uncle and aunt, P.W 6 and P.W. 7, who had arrived at the place of occurrence shortly

after the said incident and was informed by P.W. 2 about the assault on his mother by the appellant. P.W. 1, a neighbour also saw the appellant

hurriedly leaving his home at dawn on 21.07.2006.

His evidence has been criticised on the ground that there was no source of light. Indisputably dawn was breaking at the time when the incident

occurred and one cannot ignore the fact that there was some morning light at the time when the appellant had run away from his house. Hence, the

evidence of P.W. 1 cannot be discounted on the count of lack of light. The aforesaid witnesses have unequivocally established the prosecution case

that the appellant was present in the room with his wife and had a quarrel with her in the preceding night. In the early hours of the next morning he

assaulted his wife on her head and hurriedly ran away from the place of occurrence.

Evidence of the said witnesses are squarely supported by the injury reports proved by the treating doctors viz. P.W. 4 and P.W.7. Hence, I have no

doubt in my mind that the prosecution has been able to prove that the appellant had caused grievous injuries on the head of the victim which was likely

to cause death. It is true that the victim survived for six weeks. I also note that the post mortem report in the instant case has not been exhibited. It is,

however, nobody’s case that the victim had died due to any circumstance other than the injuries which had been inflicted on her head by the

appellant.

In the backdrop of the aforesaid materials on record, although I have no doubt in my mind that the appellant had caused grievous injuries on the head

of the victim which were likely to cause death but in view of the fact that the victim survived for six weeks and that the post mortem report has not

been exhibited in the instant case, I am of the view it cannot be said with certainty that the appellant had intended to murder the victim or that the

injuries were sufficient in the ordinary course of nature to cause death.

Hence, I am inclined to modify the conviction imposed on the appellant and I hold that the appellant is guilty of culpable homicidal death of the victim

under Section 304(I) of the Indian Penal Code as he caused death of the victim by inflicting grievous injuries on her head which were likely to cause

death. Coming to the issue of sentence, I find that the appellant has already suffered twelve years of rigorous imprisonment. In view of the aforesaid

fact, I modify the substantive sentence to the period already undergone and I direct him to pay a fine of Rs.10,000/-, in default, to suffer rigorous

imprisonment for six months.

Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him

in terms of 428 of the Code of Criminal Procedure. The appeal is accordingly disposed of. I record my appreciation for the able assistance extended

by Ms. Sinha, learned Counsel appearing as amicus curiae, for disposal of the appeal. Copy of the judgment along with the Lower Court Records be

sent down to the Trial Court at once for necessary compliance. Urgent photostat certified copy of the order, if applied for, be given to the parties on

priority basis.