Nani Gopal Dhowrey & Ors. vs State Of West Bengal

The appeal is directed against the judgment and order dated 26.11.2013 and 27.11.2013 passed by the learned Additional District and Sessions Judge,

3rd Court, Suri, Birbhum in Sessions Case No. 42 of 2005 convicting the appellants for commission of offence punishable under Sections

148/326/302/149 of the Indian Penal Code and sentencing them to suffer life imprisonment each and to pay a fine of Rs.3,000/- each for the offence

punishable under Sections 302/149 of the Indian Penal Code, in default of payment of fine each of them to suffer simple imprisonment for six months

more and to suffer rigorous imprisonment for two years each for the offence punishable under Section 148 of the Indian Penal Code. No separate

sentence was imposed for the offences punishable under Sections 326/149 of the Indian Penal Code. All the sentences were directed to run

concurrently.

The prosecution case, as alleged against the appellants is to the effect that on 17.08.2004 at 6.30 a.m. Nemai Chandra Mondal (P.W. 1) received

information that the appellants were cutting the bank of the pond (Moral Pukur) by the side of a road. Hearing such news he along with his sons Labh

Mondal (P.W. 2) and Kush (the victim) came to the place of occurrence with his nephew, P.W. 3 Madan Mondal. An altercation ensued between the

parties. Appellant Nani Dhowrey, hit Labh (P.W. 2) with a spade. Goutam hit him with a stick, Uttam hit Kush on the head and the latter fell down,

Santosh also beat Kush. At that time, Goutam Dhowrey suddenly picked a heavy stone and hit Kush on the head. The miscreants also abused his wife

Gita Mondal and snatched away her gold chain.

Over the incident, P.W. 1 lodged written complaint with the police resulting in registration of Suri Police Station Case No. 24 of 2004 dated 17.08.2004

under Sections 147/148/149/323/325/ 326/ 308/379 of the Indian Penal Code. Kush Mondal was initially treated at Suri hospital and subsequently

shifted to S.S.K.M. hospital where he expired on 20th August, 2008. After his death, section 304 of the Indian Penal Code was added to the FIR. In

conclusion of investigation charge-sheet was filed against the appellants and the case was committed to the Court of Sessions and transferred to the

Court of Additional Sessions Judge, 3rd Court, Suri, Birbhum for trial and disposal. Charges were framed against the appellants under Sections

148/326/149 IPC and under Sections 302/149 IPC. The appellants pleaded not guilty and claimed to be tried. In the course of trial prosecution

examined seventeen witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication. In

conclusion of trial, learned trial judge by judgement and order dated 26.11.2013 and 27.11.2013 convicted and sentenced the appellants, as aforesaid.

Mr. Basu and Mr. Mukherjee, learned senior counsels appearing for the appellants argued that the names of the appellants had not been disclosed in

the medical papers relating to the treatment of the victim at Suri Sadar Hospital marked as ‘Exhibitâ€"10’. Even the names of all the appellants

had also not been narrated at S.S.K.M. hospital where the victim breathed his last. It is further submitted that the evidence of the purported eye

witnesses suffered from various embellishments and contradictions and are liable to be rejected. Alternatively, it has been argued that the evidence on

record shows that the incident occurred in the course of an altercation and there is nothing to establish that the appellants shared the common object to

kill the victim.

On the other hand, Mr. Maity appearing with Mr. Datta submitted that the evidence of eye-witnesses including the injured witnesses namely P.W 2

and 3 clearly establish the roles of the appellants who had assaulted the victim resulting in his death. Victim suffered severe head injuries and expired.

Ocular version is supported by the medical evidence. Hence, the prosecution has been able to prove that the appellants shared the common object to

commit murder and the conviction and sentence does not call for inference.

P.W 1, 2, 3 and 4 claim to be the eye-witnesses in the instant case. P.W 1, Nemai Mondal is the de facto complainant and the father of the victim. He

deposed that one year ago around 6 a.m. Madan Mondal, P.W 3 informed him that the accused persons were digging the bank of the pond for the

purpose of opening a drain. On receiving such information he along with Madan and his sons Labh and Kush came to the pond. They protested to

such act. Nani Dhowrey assaulted Labh on his head with kodal. Santosh assaulted Madan by lathi on his head. Madan fell down on the earth. Kush

snatched the spade from Nani and threw the same into the pond. Thereafter, Utam assaulted Kush with a lathi on the head. Kush fell down.

Thereafter Uttam, Goutam and Santosh assaulted Kush by lathi all over his body. Narattam assaulted Kush by sabol on the head. Kush lost his sense.

Nani forced other accused persons to assault Kush with a big stone whereupon Kush was assaulted by a stone. Thereafter the victim was taken to

the house wherefrom he was shifted to Khairasole P.S by truck. From the P.S he was removed to Suri District Hospital and then to Burdwan and

lastly to P.G hospital where he expired. He lodged written complaint with the O.C. Khairasole on the same day (Ext.1). He proved his signature on

the written complaint (Ext. 1/1). In cross examination he stated that Nani Dhowrey lodged written complaint against them and police started a case.

He is a cosharer of the pond.

P.W 2, Labh Mondal is the injured eye-witness and the brother of the victim. He has corroborated the evidence of his father P.W 1. He deposed that

after going to the place of occurrence they protested against the acts of the appellants. He went to Nani to snatch the spade with which the latter was

digging the canal. Thereafter, Nani assaulted him on the head. Madan was assaulted by Santosh. His brother Kush snatched the spade from Nani and

threw it away in the pond. Uttam assaulted Kush on the head and Kush fell down on the ground. Kush requested Nani not to assault but Nani directed

other accused to kill him. Goutam, Bikash, Santosh assaulted Kush all over the body. Narattam assaulted Kush on the head. Kush became senseless.

Then Goutam picked up a big stone and assaulted him on the head with that stone. Kush was taken to Khoyrasole PS and was shifted to Suri Sadar

Hospital. Thereafter Kush was shifted to Burdwan and thereafter to Kolkata for better treatment where he died.

P.W 3, Madan Mondal is the other injured witness. He has substantially corroborated the evidence of P.W 1 and 2. P.W 4, Apurba Mondal is the

nephew of P.W 1. He has also corroborated the evidence of the other eye witnesses. He deposed that P.W 2, 3 and 4 were shifted to Burdwan

Medical College and then to Kolkata PG hospital for better treatment. P.W 5, Rita Mondal is the mother of the victim. She deposed that she saw the

assault of her son from a distance and could not specifically state who assaulted and in which manner. P.W 7, Pradip Kr. Mondal is the scribe of the

FIR. He proved the written complaint and his signature on the written complaint. P.W 8, Subhas Dhawre and 9 Chandra Dhawre are the post

occurrence witnesses. They came to the place of occurrence and found that Kush was lying at the place of occurrence with blood coming out from

his mouth. Kush was shifted to PG hospital where he expired.

P.W 10, Dr. Purusattam Som was posted at Suri Sadar Hospital at the time of occurrence. On 17.8.2004 he admitted Madan Mondal in the hospital

for treatment. He was discharged from hospital on 21.8.2004. There was a cut injury on his head in the occipital parietal region in mid line 2 inch x 1/2

inch x 1/4 inch. He opined that the injury was simple in nature. He proved the injury report (Ext. 3). He also examined Labh Mondal who was under

his treatment and was discharged on 21.8.2004. He found scalp cut injury at the temporo parietal region (posterior aspect 2 inches x 1/2 inch x 1/2

inch). Nature of injury was simple. He proved the injury report and his signature thereon (Ext. 4). He also proved discharge certificates of both the

patients (Ext. 5 and 6). Upon recall he has proved the medical papers relating to treatment of victim Kush Mondal in the said hospital (Ext. 10).

P.W 11, Sandip Chattaraj received a written complaint from P.W. 1 and drew up the formal FIR (Ext. 1/4). P.W.12, Dwijendranath Sinha conducted

inquest over the dead body of Kush Mondal who died at S.S.K.M hospital on 20.8.2004 (Ext. 7). P.W 13, Dr. Anjan Kr. Paul deposed that he was

posted as EMO at S.S.K.M hospital on 18.8.2004. On that day about 2.15 a.m. a patient namely Kush Mondal was brought to the emergency

department of the hospital and admitted with serious head injury under Dr. P. Tripathi. He recorded the history of injury. In the history of assault it is

stated that the victim sustained injury due to damage with stone, spear and other hard objects by Uttam Dhowrey, Goutam Dhowrey, Nani Dhowrey

and others over dispute of pond.

He proved the injury report (Ext. 8). He also proved death certificate (Ext. 9). P.W 14, Asit Hazra is a local co-villager and post occurrence witness.

He had taken the victim along with Labh and Kush to Suri Sadar Hospital. Kush was shifted to Burdwan Medical College and Hospital and then to

S.S.K.M hospital where he breathed his last. He is also a signatory to the inquest. P.W 15, Dr. Tapan Kanti Roy is the post mortem doctor who found

the following injuries:

 1. Left side of frontal to temporal area was stitched with 28 stitches for a length of 6â€​.

All the scalp tissue was bruised.

There was a lacerated wound at the forehead for an area of 1 ½â€​ x ½â€​ deep to bone.

At the frontal area there was a depressed fracture of bone for an area of 3â€​ x 2 ½â€​.

At the left side of scalp in the temporal area a portion of bone was removed for an area of 2 ½â€​ x 1 ½â€​.

There was a subdural hematoma measuring 2â€​ x 2â€​ size.

He opined that the death was due to the effect of head injuries, antemortem and homicidal in nature. He proved post mortem report (Ext. 11). In cross

examination he stated that such depressed injury of scalp is expected if a stone weighing about 10/12 kgs. is pelted from a distance of 3/4†feet.

P.W.17 is the investigating officer of the instant case. He drew up sketch map (Ext. 12). He seized one spear and other articles from the place of

occurrence under seizure list. He collected inquest report, post mortem report and discharge certificate of Kush Mondal and injury reports of Labh

Mondal and Madan Mondal. He submitted charge sheet in the instant case.

 From the aforesaid evidence on record I find that on 17.8.2004 P.W 1 was informed by P.W 3 that the appellants were cutting a drain in the pond

known as ‘Moral Pukur’. Evidence on record shows that P.W 1 is a co-sharer of the said pond. Accordingly, he rushed to the place of

occurrence and protested against the acts of the appellants. In the course of altercation appellants assaulted his sons P.W 2 and Kush (the deceased)

and his nephew Madan (P.W. 3) was also assaulted. Kush was assaulted on the head by Uttam and Narottam. He was also assaulted on various

parts of the body by other appellants. He fell down on the ground. Suddenly, on the extortion of Naru, Goutam picked up a stone and struck Kush on

the head. Kush along with other injured persons, namely Labh Mondal and Madan Mondal were taken to Suri Sadar Hospital.

Labh and Madan were treated at Suri Hospital and discharged whereas Kush was shifted to Burdwan Medical College and Hospital and thereafter to

SSKM Hospital where he breathed his last on 20.08.2004. Injuries on Labh and Madan have been proved by P.W. 10, the doctor who treated them at

Suri Sadar Hospital. P.W. 15, the P.M. doctor noted serious head injuries on the victim. In cross-examination he, however, stated that the depressed

injury on the scalp was due to a hit by a stone of 10/12 kgs. Although it has been argued that names of appellants did not transpire in the injury reports

(Exhibits 3, 4 and 5) at Suri Sadar Hospital, all their names have transpired in the first information report. No question was asked to P.W. 10 (medical

officer) as to whether he had queried from the patient party as to who had assaulted the victims. In the absence of such cross-examination, I am of

the opinion that failure of P.W. 10 to specifically record the history of assault in the medical papers would not militate against the prosecution case.

Coming to the evidence of the eyewitnesses P.W. 1 to P.W. 4, I note that P.W. 2 & 3 were injured in the course of the incident. Injury reports of the

said witnesses have also been exhibited in the instant case. Although there may be some embellishments or minor contradictions in their version,

however, the gist of the prosecution case has been consistently narrated by the said witnesses. Minor improvements in their versions particularly with

regard to the specific roles of the appellants when compared with their previous statements to the police would in my opinion not render their version

unreliable or unworthy of credence. On the other hand, the versions of the said witnesses are not only corroborated inter se but is also supported by

the medical evidence of P.W.s 10, 13 and 14 with regard to the head injuries sustained by the victim and injuries sustained by P.W.s 2 and 3 in the

course of the incident.

At this juncture let me analyse the evidence of P.W.s 1 to 4 with regard to the extent of liability of the appellants. Charge against the appellants is that

they formed an unlawful assembly and pursuant thereto murdered the victim. A deeper scrutiny of the evidence on record would show that the

incident of assault occurred in two phases. Firstly, the appellants had come in a body to the pond, Moral Pukur to illegally cut a canal. They had

digging equipments like lathi, spade, etc. with them for that purpose. While they were undertaking such illegal work, P.W.s 1 to 3 and the victim, Kush

came to the spot and objected. Thereupon, the appellants indiscriminately assaulted the victim and others with the lathi/spade which they had carried

for digging purposes. Allegation of use of spear/ballan in the assault has not been proved as P.W. 1 did not identify the spear/ballan produced in Court

as the weapon of assault.

As a result of such assault, Kush fell down on the ground. At this stage, the second phase of the incident begins. Suddenly, one of the appellants

namely, Goutam picked up a big stone from the bank of the pond and hit the victim on his head. It is the evidence of P.W. 15, post- mortem doctor

that the suppressed injury on the scalp of the victim, that is, the most fatal blow, was due to a hit by the stone. In order to link the act of Goutam to the

common object of the unlawful assembly, it is alleged that appellant no.1, Nani had exhorted Goutam to kill the victim and consequentially Goutam

assaulted the victim with a stone. Allegation of exhortation by Nani is wholly absent in the FIR. It was also absent in the previous statements of the

prosecution witnesses during investigation and appears to be an afterthought which was introduced for the first time in Court. If such exhortation of

Nani is not believed, it is difficult to hold that the sudden act of Goutam to hit the victim on the head with a stone in the second phase of the incident

was in pursuance to the common object of the unlawful assembly. Assemblage of the appellants at the spot with digging equipments to illegally cut a

canal and the assault on the victim and others in the course of altercation which ensued therefrom shows that the appellants shared the common

object to commit mischief and in pursuance thereto they inflicted injuries on the victim which were likely to cause death.

The weapons of assault used by them were lathis, spade, etc. which they had carried for digging purposes and not to assault the victim. Use of

spear/ballan in the assault is not proved beyond doubt and the seized spear/ballan could not even be identified by P.W. 1. In this factual backdrop, I

find it difficult to believe that the appellants (other than Goutam) intended to kill the victim as none of the appellants had contemplated or had reason to

believe that Goutam would suddenly pick up a stone from the place of occurrence and hit the appellant on the head causing the most fatal injury and

death of the victim. I am fortified to arrive at such conclusion as it is nobody’s case that Goutam had carried the stone with him when he

accompanied others to the place of occurrence and the exhortation of Nani in that regard also appears to be a desperate afterthought to connect the

individual act of Goutam with the common object of the unlawful assembly. Hence, though Goutam may be held guilty for causing murder of the

victim by causing the most vital injury on the head of the victim resulting in his death, the other appellants (apart from Bikash â€" whose involvement is

discussed herein below) may not be liable for committing murder of the victim in pursuance to their common object but may be held responsible for

sharing the common object of causing injuries on the victim which are likely to cause death and be punished under Section 304(I)/149 IPC.

It is true that no specific charge under Section 302 of the Indian Penal Code simpliciter had been framed against the appellant Goutam in the instant

case. However, failure to frame such charge in my considered opinion does not amount to prejudice to the said appellant or shall occasion a failure of

justice if he is found guilty of such offence. From the narration of the incident in the first information report as well as from the evidence on record,

singular act of Goutam in picking up stone from the place of occurrence and assaulting the victim resulting in the most fatal injury as per the post-

mortem doctor (P.W. 15) is clearly depicted. Hence, the appellant, Goutam was fully aware (during trial) of the case levelled against him and had

accordingly defended himself by cross-examining witnesses. This incriminating circumstance was also put to him in his examination under Section 313

Cr.P.C. Accordingly, convicting him for the offence under Section 302 IPC simpliciter would not cause prejudice to him or amount to a mistrial in the

facts of this case. [see Radha Mohan vs. State of U.P., (2006) 2 SCC 450].

Role of appellant no.6, Bikash Dhowre, in the alleged incident is also dubious. Although he is named in the FIR no overt act is attributed to him therein.

His role in assaulting the victim with lathi on the body is stated by the witnesses for the first time in Court and is not supported by the medical evidence

on record which does not show any injury on the body of the victim except his head. On the basis of such flimsy evidence, I consider it unsafe to

come to a conclusion that appellant no. 6 Bikash was a member of the unlawful assembly and in pursuance to its object had assaulted the victim along

with the other appellants resulting in his death. In view of the aforesaid discussion, I modify the conviction and sentence imposed on the appellants as

follows:-

(a) Conviction and sentence of appellant no. 6 Bikash Dhowrey on all counts is set aside.

(b) Appellant no.4, Goutam Dhowrey is convicted under Section 302 IPC and is directed to suffer sentence of rigorous imprisonment for life and to

pay a fine of Rs.3,000/-, in default to suffer simple imprisonment for six months more. Conviction and sentence of the said appellant on other counts

are upheld.

(c) Appellant no.1, Nani Gopal Dhowrey, 2, Uttam Dhowrey, 3, Narottam Dhowrey and 5 Santosh Dhowrey are convicted under Sections 304(I)/149

IPC instead of Sections 302/149 IPC and sentenced to suffer rigorous imprisonment for 10 years each and to pay a fine of Rs.10,000/- each, in default

to suffer rigorous imprisonment for six months more. Conviction and sentence of the said appellants on the other counts are upheld.

(d) All sentences shall run concurrently. The period of detention suffered by appellants during investigation, enquiry or trial shall be set off under

Section 428 of the Code of Criminal Procedure. Appellant, Bikash Dhowrey shall be discharged from his bail bonds after six months in terms of 437A

of the Code of Criminal Procedure. The bail bond of Nani Gopal Dhowery is cancelled and he is directed to forthwith surrender before the trial court

and serve out the sentence failing which trial court shall take appropriate steps to execute the sentence (in accordance with law). The appeal is partly

allowed. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance. Urgent Photostat Certified copy of

this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.