Mantu Roy vs State Of West Bengal

Partha Sarathi Sen, J

The instant appeal arises out of the judgement dated 18.01.2007 and the order of sentence dated 19.01.2007 as passed by learned Additional Sessions Judge, 2nd Court, Nadia , in Sessions Trial No.1(VIII) 2006 arising out of Sessions Case No.52(6) of 2006 whereby and whereunder the said court found the accused Mantu Roy guilty of committing offence under section 302 IPC and thus sentenced him to suffer imprisonment for life and also to pay a fine of Rs.5000/- in default to suffer simple imprisonment for six months. The convict Mantu Roy felt aggrieved and thus preferred the instant appeal.

For effective disposal of the instant appeal the facts leading to initiation of the aforementioned Sessions Trial is required to be discussed in a nutshell. One Rebati Bairagya, wife of Sukhamoy Bairagya of village Chakbehari Ghosh para, P.O Natipota, P.S Tehatta, District Nadia lodged a written complaint dated 05.04.2006 with the I/C Tehatta Police Station stating, inter alia, that on the self same day at about 9:30 A.M. her said husband went to Chakbehari Sardar para for begging. It is her further version that at that time a hot altercation took place between her husband and the said Mantu Roy, the appellant herein and thereafter the said Mantu Roy went back to his home and came out therefrom with a ‘hansua’ (a sharp cutting weapon) and thereafter by saying that he would kill the victim, gave a blow of the said ‘hansua’ on the belly of her husband and as a result whereof her husband (the victim) suffered serious bleeding injury and fell down on the earth and thereafter after hearing an alarm as raised by the victim the nearby people rushed to the P.O and they took the victim, to Tehatta Hospital wherefrom he was referred to Shaktinagar Hospital for better treatment.

On the basis of such complaint, Tehatta P.S Case No. 75/06 dated 5.04.2006 under Sections 326/307 IPC was started. Investigation was taken up and in course of such investigation the victim succumbed to his injuries. On completion of such investigation the I.O (PW 18) submitted charge sheet under Sections 326/302 against the said accused. After commitment and transfer, the learned trial court considered the entire materials as placed before him and by his order dated August 3, 2006 framed charge under Section 302 IPC as against the present appellant herein. In order to bring home the charge as against the accused, 18 witnesses have been examined by the prosecution and several documents and one material were exhibited on behalf of the prosecution. Though before the learned trial court, the accused has not adduced any evidence but from the trend of cross-examinations of the prosecution witnesses and the answers as given by the accused in course of his examination under section 313 Cr.P.C, it appears to us that defence case is based upon clear denial and false implication.

As discussed above, learned trial court on consideration of the entire evidence both oral and documentary as adduced by the prosecution witnesses passed the impugned judgement giving rise to the instant appeal.

Mr. Prabir Majumder, learned advocate for the appellant in course of his argument took us to the impugned judgement as passed by the learned trial court. It is contended by him that while passing the impugned judgement, learned trial court has failed to consider that the provisions of Section 27 of the Evidence Act has not been complied with by the IO. It is further argued by him that the learned trial court equally erred in law as well as in facts in holding the evidence of PW2, PW3and PW4 as sacrosanct especially when there are sufficient materials in the trial court record to come to a finding that their evidence are contradictory in nature and gets no corroboration from each other. It is further argued that the learned trial court ought to have hold that the conduct of PW3 after the alleged incident was very unnatural and therefore the said Court ought to have given a benefit of doubt to the present appellant. It is further argued by Mr. Majumder, learned advocate for the appellant that in view of the contradictory evidence of PW4 and PW5, learned trial court committed serious error of law in believing the evidence of PW6. It is further argued on behalf of the present appellant that even if it is found that the appellant is guilty of committing culpable homicide, the said offence must have come within the purview of Section 304 Part 1 or Part 2 of the IPC. In support of his contention Mr. Majumder, learned advocate for the appellant placed his reliance upon the reported decision of Gurpal Singh vs. State of Punjab reported in (2017) 2 SCC 365.

Per contra, Mr. Debabrata Chatterjee, learned advocate duly assisted by Md. Kutubuddin, learned advocate for the State also draws attention of this court to the evidence of PW1, PW2, PW3, PW4 and PW7. It is argued on behalf of the State that on conjoint study of the evidence of the aforementioned prosecution witnesses, it would reveal that the said prosecution witnesses led consistent evidence and thus learned trial court made no mistake in passing the impugned judgement. Referring to the evidence of PW15( Autopsy Surgeon), it is submitted further on behalf of the State that the evidence of the ocular witnesses to the alleged incident gets due support from the evidence of PW15 vis-à-vis the post mortem report as prepared by him being Exhibit 4. It is thus submitted on behalf of the State that it is a fit case for dismissal of the instant appeal.

We have meticulously gone through the entire trial court record especially the charge, the evidence of the prosecution witnesses, the exhibits and the examination of the accused under Section 313 of the Code of Criminal Procedure. We have also perused the impugned judgement in detail. We have also considered the rival contentions as raised by the learned advocates for the parties. In our considered view a brief discussion about the identity of the prosecution witnesses are very much required for effective disposal of the instant appeal.

PW 1 is the de facto complainant and the wife of the deceased and a post-occurrence witness. PW2 and PW3 being the residents of the same locality claimed to be the eye witnesses to the incident. PW4, PW9 and PW10 are also post occurrence witnesses and claimed to have taken the victim to hospital, out of them PW4 became hostile subsequently. PW5 is also a hostile witness. PW6 being the niece of the accused who claimed that she is also a post occurrence witness and further claimed that the victim mentioned the name of the assailant before her. PW7 is also a co-villager of PW1 and the deceased and is an eye witness according to the prosecution. PW 8 and PW 13 are the seizure witnesses who according to the prosecution have seen the recovery of the alleged weapon of offence as per showing of the accused. PW11 and PW12 are also the hostile witnesses. PW14 is the scribe. PW15 is the autopsy surgeon. PW16 is a constable of police who took the dead body for post mortem examination. PW17 is a police official who performed inquest over the dead body of the deceased and PW18 is the IO of the said case who submitted the charge sheet before the court.

On perusal of the impugned judgement it appears to us that the learned trial court in its said judgement had come to a finding that the evidence of the eye witness to the alleged instant are truthful and the said evidence gets due support from the oral evidence of the PW15 (Autopsy Surgeon) and his post mortem report and thus convicted the said accused under Section 235 (2) Cr.P.C. Since in course of their respective arguments, learned advocates for the contending parties confined their argument with regard to the acceptability and/or non-acceptability of the evidence of the eye witnesses to the alleged incident, we consider it fit and proper to confine our discussion with regard to the evidence as adduced by PW2, PW3 and PW7 who according to the prosecution are ocular witnesses and also the evidence of PW15 (Autopsy Surgeon) and his post mortem report being Exhibit 4.

On perusal of the evidence of PW15 i.e. the Autopsy Surgeon it reveals to us that the relevant portion of his examination-in-chief is as under:-

“On examination I found the following injuries:

R.M.-present. Clotted blood from head and neck –present.

Sharp cut injury over right side of neck measuring 1”X1/2” and muscle deep.

Two sharp cut injuries over nape of neck measuring 2”X1” and muscle deep.

Sharp cut injury over right web space between middle and ring finger.

Transverse sharp cut injury over abdomen at the level of umbilicus measuring 8”X 3” through which small gut, large gut with omentum coming out.

Stomach- Empty and cut.

Transverse colon-Cut.

Liver-cut.

In my opinion the death was due to shock and haemorrhage resulting from above mentioned injuries which are ante-mortem and homicidal in nature.

This is my post-mortem report prepared by me in carbonize process under my hand and signature. This be marked as Exhibit.4.”

In his cross-examination nothing could be elicited which may be favourable for the accused. In view of such clinching oral evidence of PW15 and his post mortem report (Exhibit 4), we have also no hesitation to hold that the death of the victim was homicidal in nature and thus the finding of the learned trial court in this regard is perfectly justified.

At this juncture if we look to the evidence of PW2, it appears to us that being a resident of the same locality of the deceased and the de facto complainant in his examination-in-chief he stated that he knew the victim and on the relevant day and hour while he was going to the house of one Harihar Biswas by riding his bicycle he noticed on the ‘pucca road’ (Debagram to Tehatta) that accused Mantu was running with a ‘Hansua’ in his hand and some of the female folk of the house of the accused tried to resist him . It is his further version that seeing such incident he also tried to resist the accused but failed and then the accused Mantu struck ‘hansua’ on the belly of the victim Sukhamoy Bairagya and thereafter the victim himself caught portion of his belly and knocked down his head and then the accused Mantu again struck ‘hansua’ on his left shoulder. In course of his cross-examination PW2 stated that he narrated the entire incident to the IO when he was examined by him under Section 161 Cr.P.C. At this juncture if we look to the cross-examination of PW18 (I.O), it appears to us that it is the version of PW18 that PW2 never stated to him that on the relevant day and hour PW2 was going to the house of Harihar Biswas by his cycle and at that time PW2 found that the accused Mantu Roy was running with a ‘hansua’ and then the female folk of the house of the accused Mantu Roy tried to resist him. Admittedly some portions of the evidence of PW2 is not consistent with the cross-examination of PW18 but in our considered view the entire evidence of PW2 cannot be thrown away because of the fact that his evidence with regard to the mode of inflicting injury on the person of the victim gets due support from the oral evidence of PW15 (Autopsy Surgeon) and also in view of the fact that no suggestion was given to PW 18 with regard to the said portion of evidence of PW2.

So far as the evidence of PW3 is concerned it reveals that in his examination-in-chief he stated that he is also a person of the same locality and he knew the victim Sukhamoy Bairagya being his co-villager. According to him on the relevant day and hour on the ‘pucca road’ (Debagram to Tehatta) he noticed from the a distance of 50 m (approximately) that accused Mantu Roy struck ‘hansua’ on the belly of the victim and thereafter he had left the place. He further stated that his labour (Sukumar Ghosh, PW7) rushed there and tied the wound portion of the victim with a napkin. It is his further version that after the incident the accused fled away from the P.O and thereafter the injured was taken to Tehatta Hospital where however he did not go.

In his cross-examination PW3 also stated that he was examined by the IO and on being asked he once again narrated that at that time he was at Chakbihari Bus Stand and from a distance of 50 m he found that the accused Mantu struck a ‘hansua’ on the belly of the victim. It appears to us that in course of his cross-examination PW3 remained all along very consistent. As discussed above in course of his argument Mr. Majumder, learned advocate for the appellant was very vocal about the conduct of PW3. According to him in view of the unnatural conduct of PW3, the said witness cannot be believed since being a co-villager he neither took the victim to the hospital nor intimated the incident to the police. In our considered view the aforementioned submission of Mr. Majumder does not seem to be very much convincing in view of the fact that PW3 both in his examination-in-chief as well as in his cross-examination in unequivocal terms stated as to how the alleged incident of murder took place at the instance of the present appellant. From the deposition of PW3 it does not appear to us that his testimony is surrounded by any suspicious circumstances or that he has been tutored. Such being the position, we thus find that the learned trial court committed no mistake in placing his reliance upon the evidence of PW3.

According to the prosecution PW7 is another ocular witness of the incident but in our considered view his testimony cannot be held to be much reliable because in the cross examination of PW18 (IO) it reveals that practically for the first time he narrated the entire incident in the Court.

Admittedly three post occurrence witnesses namely; PW4, PW5 and PW9 as per the version of the prosecution took the victim to the hospital immediately after the occurrence of the incident but for some reason or other PW4 and PW5 became hostile and PW9 in his in deposition stated that he stated nothing to the IO with regard to the alleged incident. In our considered view the evidence of PW4, PW5 and PW9 however could not affect the veracity of the two eye witnesses i.e. PW2 and PW3 who in course of their respective testimony clearly and categorically stated as to how and  by whom the alleged incident of assault took place on the relevant day and hour.

At this juncture a question may arise that whether the learned trial court is at all justified in placing reliance upon the evidence of PW2 and PW3 overlooking the evidence of the other prosecution witnesses. In our considered view it is not the number or the quantity but the quality of the evidence is material for arriving at a logical conclusion of a case. In the reported decision of Sushil Kumar Vs. State Govt. of NCT of Delhi reported in (2003)11 SCC 367 the Hon’ble Apex Court of our country while dealing with the self same subject expressed the following view:-

“As a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. But if there are doubts about the testimony, the courts will insist on corroboration. In fact, it is not the number, the quantity but the quality that is material.”

The same view was taken in the reported decision of :-

i.Namdeo vs. State of Maharashtra reported in (2007) 14 SCC 150;

ii.Kunjn @ Balachandran vs. State of Tamil Nadu reported in AIR 2008 SC 1381;

iii.Bipin Kumar Mondal vs. State of W.B reported in (2010) 3 CCrLR (SC)382.

In view of the aforesaid discussion, we thus hold that the Trial Court is perfectly justified in convicting the present appellant in the aforementioned session’s trial.

In order to decide as to whether punishment of the present appellant can be reduced in view of the provision of Part I or Part II of Section 304 IPC, we consider it just to have a look to the reported decision of State of Andhra Pradesh vs. Rayavarapu Punnayya & Another reported in (1976) 4SCC 382 wherein the Hon’ble Apex Court has elaborately discussed the provisions of Sections 299 and 300 of IPC vis-à-vis the applicability of the said two sections as well as the circumstances under which either Part I or Part II of Section 304 IPC can be made applicable. The relevant portion of the reported decision of Rayavarapu Punnayya (supra) is reproduced hereinbelow in verbatim:-

“12. In the scheme of the Penal Code, “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice-versa. Speaking generally, “culpable homicide” sans “special characteristics of murder”, is “culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

The academic distinction between “murder” and “culpable homicide not amounting to murder” has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done —

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done —

INTENTION

(a) With the intention of causing death; or

(1) With the intention of causing death; or

(b) With the intention of causing such bodily injury as is likely to cause death; or

2) With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or

(3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE

(c) With the knowledge that the act is likely to cause death

(4) With the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.

In clause (3) of Section 300, instead of the words “likely to cause death” occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word “likely” in clause (b) of Section 299 conveys the sense of “probable” as distinguished from a mere possibility. The words “bodily injury … sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature.

For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illustration of this point.

In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):

“The prosecution must prove the following facts before it can bring a case under Section 300, ‘thirdly’. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.”

Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be “murder”. Illustration (c) appended to Section 300 clearly brings out this point.”

Coming to the factual aspects of the lis as involved in this appeal, it appears to us that both PW2 and PW3 in their respective deposition testified categorically that on the relevant day and hour at the P.O they found that the accused was chasing the victim with a ‘hansua’ in his hand and soon thereafter he struck the said ‘hansua’ on the belly of the victim and when the victim fell down on the earth, the accused again struck ‘hansua’ on his left shoulder. From the evidence of PW15 as discussed above it also appears to us that the magnitude of the injury was so severe that the entire stomach, transverse colon and liver of the victim were cut by such severe blow as have been given by the present appellant. Such being the position, it cannot be said that the appellant causes such death of the victim with the intention of causing such bodily injury as is likely to cause both within the meaning of Section 299 IPC and on the contrary such act of the appellant definitely comes under the head ‘thirdly’ of Section 300 of the Indian Penal Code. In course of his argument Mr. Majumder also could not convince us that the aforementioned action of the present appellant comes under the purview of any of the exception clauses as embodied in Section 300 IPC and thus we have no hesitation to hold that the learned trial court is absolutely justified in convicting the present appellant under Section 302 IPC.

In our considered view the reported decision of Gurpal Singh (supra) as cited on behalf of the present appellant is distinguishable from the facts and circumstances as involved in the present lis and thus the same is not found to be helpful for the appellant herein.

This appeal has got no merit at all and accordingly the instant appeal is dismissed. The impugned judgement dated 18.01.2007 and order of sentence dated 19.01.2007 as passed by learned Additional Sessions Judge, 2nd Court, Nadia in Sessions Trial No.1(VIII) 2006 arising out of Sessions Case No.52(6) of 2006 is hereby affirmed.

Department is directed to send down the trial court record along with a copy of this judgement at the earliest.

Urgent Photostat Certified copy of this judgment, if applied for, be supplied to the parties expeditiously after complying with all necessary legal formalities.

I agree.