Sarala Das @ Kutti vs State Of West Bengal

RajasekharMantha, J

The instant appeal is directed against the judgment and order of conviction dated 23rd April, 2009 and 24th April, 2009 passed by the Additional

Sessions Judge, 3rd F.T.C., Malda in Sessions Trial No. 1 (11) of 2008 arising out of Sessions Case No. 212 of 2008. The appellant was convicted

under Section 304 of the Indian Penal Code.

The prosecution case in brief is that one Paran Sarkar (PW 8) lodged a complaint with the Gazole Police Station in Malda District on the 25th of

April, 2004 complaining that on Tuesday, 20th April, 2004 a kid (baby sheep) (Sic Goat) entered into the house area of his mother Baby Sarkar

(deceased) as a consequence whereof there was a scuffle between the appellant and the deceased.

The incident occurred about 3.30 pm on 21st April, 2004 when the appellant is stated to have assaulted the deceased by fists, blows and slaps. The

said scuffle is stated to have continued outside the house of the deceased and in front of the house of Sunil Halder where the appellant is stated to

have badly beaten the deceased on her belly, chest, thigh and private parts. At the time of the incident Gita Sarkar (PW 10), Kamala Saha (PW 7) and

Taramoni Halder (PW 3), the residents of the locality were stated to be present.

The deceased is stated to have become unconscious as a consequence of the beating by the appellant. The deceased was stated to have been

treated at Gazole Hospital on 21st April, 2004 and 23rd April, 2004. On 25th April, 2004 at about 2.00 pm one Nemai Saha (PW 9) is stated to have

informed the complainant that his mother had died at her house. The complainant rushed to his mother’s house where he found her lying dead.

Anirudha Goswami (PW 13), S.I. of Police and Constable Fekulal Sinha (PW 12) arrived at the house of the deceased on 25th April, 2004 at 4.55

pm and prepared an inquest of the body of the deceased lying in the Varandah of the house. The body was identified by the witnesses present who

signed on the said inquest report. No external injury was found except black marks on her belly and that the skin of the left leg of the deceased was

wrinkled and that there was more swelling on the right leg. Upper parts of the left and right thighs were found swollen.

The altercation between the appellant and the deceased was recorded after preliminary investigation. The deceased was stated to have been unable

to pass urine and was treated at Gazole Hospital on 21st April, 2004 and 23rd April, 2004 where she was stated to have died. Post-mortem was

performed thereafter. There was no doctor who certified that the deceased had died before the inquest was held.

The Charge was framed against the appellant on 3rd November, 2008 under Section 304 of the Indian Penal Code and the trial commenced. The

prosecution examined the following witnesses.

PW 1 â€" Arabinda Ghosh, Stationary shop owner by the side of Gazole Police station and scribe of the complaint.

PW 2 â€" Sefali Sarkar, wife of the complainant and daughter-in-law of the deceased.

PW 3 â€" Taramoni Halder, resident of the village and eye-witness.

PW 4 â€" Binita Pal, local resident who was not an eye-witness.

PW 5 â€" Dinesh Tarafdar, resident of the village and witness to the inquest report.

PW 6 â€" Anjali Bala, resident of the village, not an eye-witness.

PW 7 â€" Kamala Saha, resident of the village, declared hostile.

PW 8 â€" Paran Sarkar, son of the deceased, the complainant and the rickshaw van puller.

PW 9 â€" Nemai Saha, tea stall owner, person who informed the complainant of the incident.

P’W 10 â€" Gita Sarkar, eye-witness.

PW 11 â€" Dr.ManikLal Das, Post-mortem doctor.

PW 12 â€" Fekulal Sinha, Constable with Gazole Police Station.

PW 13 â€" Anirudha Goswami, Investigating Officer and S.I. of Police.

The post-mortem report indicated that the probable time of death was approximately 36 hours prior to examination. The cause of death was stated

to be an effect of ante-mortem rupture of urinary bladder. All other organs were found to be healthy in order.

The charge-sheet did not contain the date of incident or the date and time of death. PW1, Arabinda Ghosh, scribe of the F.I.R. who wrote the same

on the instruction of Paran Sarkar deposed that LTI of PW 8 was affixed in front of him.

PW2, Sefali Sarkar who knew the appellant and was the daughter-in-law of the deceased. She was not an eye-witness. She, however, admitted

that her mother-in-law was suffering from ailments.

PW3, Taramoni Halder was an eye-witness to the incident. She narrated the whole incident. She said that the daughter of the appellant was

present at the time of the incident. She deposed that the victim fell unconscious after the scuffle with the appellant and she supplied drinking water to

one Gita Sarkar to pour on the unconscious victim Baby Sarkar. She deposed that the deceased was treated at Gazole Hospital for two days and that

the deceased was bed-ridden after the incident. She, however, deposed in cross-examination that the victim died due to ailments.

PW4 is Binita Paul. She knew the appellant. She claimed to have heard about the incident and she said that she was cooking in her house at the

time of scuffle between the appellant and the deceased. She was not an eye-witness. PW5, Dinesh Tarafdar, resident of Kashipur village and the

father of Sefali Sarkar (PW2). He was not an eye-witness and was only present at the time of inquest. PW6 is Anjali Bala who was also not an eye-

witness. PW7 is Kamala Saha who neither knew the victim nor the deceased. She denied having told the Investigating Officer anything about the

incident and was declared hostile.

PW8 is Paran Sarkar, the complainant and was a van puller. He heard of the incident from one Nemai Saha (Tea stall owner). He did not see the

incident. He admittedly does not reside with his mother, the victim. He was present at the time of inquest and stated in cross-examination that his

mother died due to ailments. PW9 is Nemai Saha, the tea stall vendor, who informed PW 8 Paran Sarkar of the incident.

PW 10 is Gita Sarkar. She was not an eye-witness. She worked as a member of the Mahila Samiti and was into politics. Although she was not an

eye-witness, she narrated the whole incident having heard the same from the deceased. She related the entire incident to the police. She also stated

that she visited Gazole Police Station in connection with the incident. She also gave a complaint in writing to the police and put a signature thereon.

She also put her signature on the inquest report. She stated that the deceased Baby Sarkar went to work on the date of the incident and returned

home late at night the same day.

PW 11 is the Post-mortem Surgeon who deposed that apart from the small abrasion on the right hip there was no other external injury on the body

of the deceased. The bladder and urethra of the victim were stated to have ruptured and the cause of death was ante-mortem rupture of the urinary

bladder. Death was within 36 hours prior to the examination. Injury was stated to have been caused by a blunt weapon.

PW 12 is Fekulal Sinha, Constable who accompanied the I.O. to the house to the deceased where her body was found. PW 13 is the I.O.

None of the statements of the witnesses who were claimed to have been examined under 161 of the Cr.P.C. were confronted to any of the

witnesses. One Akshay Sarkar was interrogated by the I.O. The I.O. did not take the statement of PW 8 Paran Sarkar, but noted the statement of

Sefali Sarkar under Section 161 of the Cr.P.C. He admitted having collected the injury reports from the doctors at Gazole Rural Hospital but could not

find any seized articles in Court. In Court he also admitted that he did not seize any other medical records of the deceased Baby Sarkar from the

Gazole Rural Hospital.

The appellant was examined under Section 313 of the Cr.P.C. of the Court and denied the entire incident. He stated that victim died on the 4th

day of the incident at the hospital.

Based on the above the appellant was convicted under Section 304 of the Indian Penal Code for seven years of imprisonment and to pay fine of

Rs.1000/- in default whereof to suffer one month rigorous imprisonment.

This Court finds serious discrepancies in the evidence and the conclusion arrived at by the Trial Court. The first major discrepancy in the

prosecution case and the investigation is that the victim having been found in her house by PW 12 and 13, there was nobody to certify that the victim

in fact died and how and when she actually died. The only evidence available is that of PW 11 the Post-mortem doctor. Hence the suspicious

circumstances under which death occurred and the appellant being accused, therefore, commenced from this stage itself.

The next serious discrepancy is found in the evidence and deposition of Gita Sarkar PW 10. She claimed to have narrated the entire incident to the

police on the next day of the incident after coming to know of the same from the deceased and the appellant. She claimed to have submitted a written

complaint to the police. Hence on the 21st April, 2004 itself the statement of Gita Sarkar ought to have been registered as an FIR. The said evidence

drastically contradicts the version of the police that the case was started only on the complaint of PW 8 Paran Sarkar on the 25th of April, 2004. The

FIR lodged on the 25th April, 2004, therefore, could not have been lodged at all and FIR if any ought to have been prepared on the 21st April, 2004 on

the basis of the complaint of Gita Sarkar. Gita Sarkar should have been declared hostile. This was not done. Since the FIR based on which

investigation was started by the police and chargesheet was filed could not have been an FIR in the eye of law, the entire prosecution case must be

deemed to have collapsed on this score alone.

Even assuming for the sake of argument that the FIR registered on the 25th April, 2004 is taken to be valid and lawful, the evidence of Gita Sarkar

(PW 10) and PW 2 Sefali Sarkar that the deceased was suffering from ailments and might have died thereof cannot be brushed aside. What was

required to be established by the prosecution is as to whether the victim died as a result of any injury sustained as a consequence of this scuffle. The

evidence of PW 10 Gita Sarkar clearly established that the victim on the day of the incident of assault by the appellant was able to go to work and

come back home late at night. The injuries if any inflicted by the appellant on the victim were not so serious in nature since she could go to work on

that day.

The victim was taken to Gazole Hospital on the 21st April, 2004 the day after incident. She was treated thereat and returned back home against

medical advice. The same is evident from the statements in the LCR given by two several doctors who attended and treated the victim on the 21st

April, 2004. The prosecution very surprisingly did not examine them. The said persons were extremely vital to depose as to the actual cause of death

of the victim. It was clearly stated in the statement of the said attending doctor Dr. Ganesh Ranjan Chowdhury that the injuries sustained by the victim

were not such that would lead to the death of the victim. The other attending doctor Dr. S. Ghosh stated that victim’s vital signs were normal on

the date she was at hospital.

For withholding the evidence of the said doctors Dr. G.R. Chowdhury and Dr. S. Ghosh adverse interference ought to have been drawn against

the prosecution in this regard.

On the 2nd day after the incident i.e. 22nd April, 2004 the victim was not taken to hospital. There is no evidence on record that there was any

deterioration in the health of the victim on the said day. The victim was taken to the hospital again on the day after i.e. 23rd April, 2004 when once

again there are no hospital reports to indicate as to what the medical condition of the victim on the said date.

The evidence on record clearly shows that the victim was brought back home without any serious cause for concern by the attending persons. Her

medical condition was normal. There are no medical reports of the hospital in relation to the victim either seized or produced by the prosecution. The

victim is stated to have been died on 25th April, 2004 at home. As to exactly was transpired before the death of the victim on the 24th since morning

or what was the medical condition on the said day is also not clear on record. There was no evidence that anybody else was there on the said date.

The prosecution case is full of loopholes. The prosecution could not even remotely establish its case. The Trial Court failed to notice the same.

The trial and conviction are a clear case of miscarriage of justice.

The impugned order of conviction is not sustainable and is set aside. The bail bonds are discharged. The accused is set free.

The appeal is allowed. There shall be no order as to costs.

Urgent Photostat Certified server copy of this Judgment, if applied for, be supplied to the parties on urgent basis.