Shib Shankar Das vs State of West Bengal

Indrajit Chatterjee, J.—This Court is hearing this appeal as against the judgment and order of conviction dated 11-11-2014 and 12-11-2014 respectively passed by the then Additional District & Sessions Judge, Jangipur, District: Murshidabad, in Sessions Trial No. 4 April, 2011 (Sessions Serial No. 399 of 2014) wherein the present appellant was convicted in respect of the charge under Section 304 of the Indian Penal Code and also sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 5000/- in default, rigorous imprisonment for one year more.

It may be noted that Sessions Case arose out of G.R. Case No. 198 of 2009 corresponding to Raghunathganj P.S. Case No. 80 of 2009 dated 18-02-2009 for the offence punishable under Sections 304/34 of the I.P.C.

The complaint was lodged by one Apurba Kumar Das son of late Jagannath Das against the present appellant. In that complaint, it was claimed that on 06-02-2009 at about 1 p.m. the cattle of the de facto complainant trespassed in the land of his full brother, Shib Shankar Das and thereafter there was quarrel in between the de facto complainant and his elder brother, Swadhin Das, aged 65 years on one side and their brother, Shib Shankar Das, the present accused, in the other side. The matter ended there on that date.

On the next date, i.e. 07-02-2009 at about 7 a.m. again quarrel started in between the present accused and that Swadhin Das. The two sons of Shib Shankar Das, namely, Ananda Das and Mukunda Das caught hold of Swadhin Das and Shib Shankar assaulted him by one sharp-cutting weapon on the left thigh of the victim, Swadhin Das. Swadhin Das sustained serious injuries and was shifted to Jangipur Sub-Divisional Hospital on that date and on 10-02-2009 the victim was referred to Berhampore District Hospital and from there, the victim was shifted to one nursing home named and style as "Jivandeep" and ultimately the victim died there on 17-02-2009 at night.

One U.D. Case No. 88 of 2009 was started by Berhampore Police Station on 17-02-2009 and ultimately, the FIR was lodged on 18-02-2009 which was receipt by Raghunathganj P.S. at about 7.05 hours. After the receipt of the FIR, the aforesaid number of Raghunathganj P.S. was registered and S.I., Sudhangsu Sekhar Mondal (P.W. 11), took up the investigation as per the order of the Officer-in-Charge of that police station. It may be mentioned that inquest examination of the dead body of the victim was done by Berhampore Police Station in connection with that U.D. case on 17-02-2009 at about 9.35 hours in the hospital. During the course of investigation, the I.O. of the case collected the said inquest report (marked as Ext. 5), prepared a rough sketch map with index (marked as Ext. 6), some photo copies of bed-head tickets of the victim (marked as Ext. 7), injury report of the victim which was marked as Ext. 1 and the I.O. of the case collected carbon copy of the post mortem report of the victim which was marked as Ext. 8 as proved by P.W. 13.

After investigation, the I.O. submitted charge sheet against the three accused persons of whom two accused persons were declared juveniles and case against them was split up.

The case was committed to the Court of Sessions and ultimately, the case was transferred to the learned Trial Court. Charge was framed against the accused for the offence punishable under Section 304 Part-II of the I.P.C. to which the accused pleaded not guilty and claimed to be tried.

Before the Trial Court as many as 14 witnesses were examined including the de facto complainant (P.W. 3), P.W. 5, the wife of the victim, P.W. 6, the wife of the complainant, P.W. 7, the son of the victim and P.W. 8, the daughter of the victim. They were the private witnesses. The medical officials examined by the prosecution are the P.W. 1, P.W. 12 and P.W. 13. The police personnel examined by the prosecution are P.W. 2, who filled in the formal FIR, P.W. 11, i.e. the I.O. of the case, P.W. 9, who prepared the inquest report on the dead body of the victim, P.W. 10, i.e. the second I.O. of this case, who submitted the charge sheet. The accused was examined under Section 313 of the Cr.P.C. and he did not make out a positive case but only denied the allegation labelled against him. As per 313 examination the age of the accused on 19th August was 70 years.

On behalf of the defence neither any oral evidence was adduced nor any document was proved. I have already said regarding the fate of the present trial before the Trial Court including the order of conviction. It may be noted that warrant of arrest has been issued against the said accused but this Court is still in the dark as to whether the accused has been apprehended or not. Before I proceed further I like to reiterate that actually the charge sheet was submitted against three accused persons, namely, the present appellant facing trial and his two sons, namely, Mukunda Das and Ananda Das @ Biswajit who were declared as juvenile as per the order of learned Additional Chief Judicial Magistrate, Jangipur dated 23-06-2009. The trial court proceeded before the Sessions Court only against the present appellant.

At the time of hearing of argument, it was submitted by Mr. Gupta, learned Advocate, appearing for the accused-appellant by taking me to the evidence of P.W. 12, i.e., the doctor who attended the victim at Jangipur S.D. Hospital to convince this court that actually the patient died due to apathetic attitude on the part of the de facto complainant party. He reiterated that even though the said doctor (P.W. 12) asked the patient by filling up the referral slip to take the victim to Berhampore S.D. Hospital but the patient party kept the patient for two more days in the hospital and as such, the victim-patient remained under treatment which was given by Dr. Nirup Biswas.

He also took me to the evidence of P.W. 13, i.e. the Autopsy Surgeon to show that the injury which the victim sustained cannot lead to his death. He submitted that such doctor, P.W. 13 specifically opined that the death was due to cardio respiratory failure and shock and haemorrhage from two injuries as noted in the P.M. report. It was submitted by Mr. Gupta that even though these two injuries are believed to have been inflicted by the accused-appellant, then even the conviction under 304 Part-II of the Indian Penal Code as imposed by the learned trial court cannot be sustained. He took me to the evidence of P.Ws. to show that the evidence of P.Ws. 3, 5 and 7 are hazy to brand them as eyewitnesses. Thus, he submitted that the accused appellant did not commit any offence under Section 304 Part-II of the Indian Penal Code and he may be acquitted in respect of the said order of conviction and sentence.

It was submitted by Mr. Datta, learned Advocate, appearing on behalf of the State by taking me to the evidence of P.Ws. 3 and 6 to show that it was this accused who inflicted two injuries on the victim which ultimately resulted in his death and as such, the medical report and at least the evidence of two eyewitnesses can prove that the accused committed crime as claimed by the prosecution.

Thus, the vital witnesses of this case are P.Ws. 3 and 6 and to ascertain the injuries, I am also to look into the P.M. report as proved by P.W. 13. P.W. 3 deposed that on 07-02-2009 at about 7-00 a.m. an altercation started between the accused Shib Shankar Das and the victim including this P.W. 3 and at that time, the two sons of Shib Sankar Das, namely, Mukunda Das and Ananda Das caught hold of the victim and Shib Shankar Das assaulted him on his left thigh with a ''Kati''. I am told both by the prosecutor and by the defence that this ''Kati'' is one sharp-cutting weapon. This P.W. 3 further deposed that thereafter the victim was taken to Jangipur S.D. Hospital from where he was transferred to Berhampore New General Hospital and the victim was thereafter shifted to Nursing Home where he died on 17-02-2009 at about 2-13 a.m. This court is not unmindful of the suggestion given by the learned defence Counsel before the trial court when P.W. 3 was being cross-examined - "It is not a fact except we three no other persons were present at the time of incident". This shows at least the presence of P.W. 3, the present appellant and the victim at the scene of the crime. I have gone through the evidence of P.Ws. 5 and 7, who are also the relations of the victim as well as of the accused.

This court cannot say with certainty that these two witnesses also witnessed the crime like P.W. 3. But on reading and re-reading the evidence of P.W. 6, i.e., the wife of the de facto complainant, this court is satisfied that this witness also witnessed the crime like that of her husband and she also deposed the truth. I have my anxious thought on the cross-examination of P.Ws. 3 and 6 and this court is satisfied that they duly withstood the test of cross-examination. Thus, this court is satisfied that it was the present appellant who inflicted the injuries on the thigh of the victim on the date and time of the incident.

Now, let me consider what were the injuries. The injuries as noted by P.W. 13 in the P.M. report marked as Ext. 8 were as follows:-

"1) A cut injury at left hip joint - 6 inch x 8 inch x 7 inch.

2) Two cut injuries just above injury No. 1, 1 inch apart each about 4 inch x 3 inch x 3 inch"

Apart from these two injuries, P.W. 12 also noted that the victim received fractured injury. Both injury Nos. 1 and 2 were sharp-cutting injuries and naturally the evidence of P.Ws. 3 and 6 gets reinforcement from the evidence of the two medical experts.

Now, the question is whether the trial court was right in convicting the accused appellant in respect of the charge punishable under Section 304 Part-II of the Indian Penal Code. Section 304 Part-II of the Indian Penal Code is culpable homicide not amounting to murder. The striking feature of Section 304 Part-II of the Indian Penal Code is that the act of the accused must be done with the knowledge that it is likely to cause death. I admit that to attract Section 304 Part-II of the Indian Penal Code no intention to cause death is necessary and so also the intention to cause such bodily injury as is likely to cause death.

This court is convinced through the evidence of P.W. 13 that actually due to the poverty the de facto complainant party even could not take the victim to a good hospital for treatment. The injury Nos. 1 and 2 as noted in the P.M. report in ordinary course would not have resulted the death of the victim, had the victim received proper and good medical attention but unfortunately he could not get so because of poverty in the family. The accused cannot be blamed for this. The accused had no knowledge at the time when he inflicted the injuries that such injuries would have led to the death of his full brother. What happened in the spur of a moment.

Be that as it may, the accused appellant cannot get escape from the ingredient of 326 of the Indian Penal Code. The nature of the injuries which the victim suffered can safely be covered under Section 326 of the Indian Penal Code. The injuries sustained were both inflicted by sharp-cutting weapon and those were grievous in nature. P.W. 12 also deposed - "On examination of the patient I found that the said patient had open fracture on left femur ....."

Thus, this court is satisfied that what act the accused committed was certainly one offence punishable under Section 326 of the Indian Penal Code.

Now as to the quantum of sentence, the learned trial court imposed a sentence of five years of rigorous imprisonment and fine of Rs. 5000/-. Considering the nature of injuries and the age of the accused this court reduces the imprisonment from five years to four years but keeping the fine amount intact and also the sentence in default. If a man of 70 could not cool his anger even at that age, he will naturally have to face the consequences. This court has already decried the order of the trial court to grant bail to this appellant even though the sentence of imprisonment was more than three years. This observation be noted in this judgment.

Thus, the conviction under Section 304 Part-II is altered to Section 326 of the Indian Penal Code and the sentence is reduced from five years to four years. The fine amount and sentence of default will remain as it is.

So long myself is as regards the prosecution, something is to be done to the victim party also. The record shows that P.W. 5, i.e. the widow of the victim, namely, Sudebi Das, widow of Swadhin Das of Takshak Village, P.S. Raghunathganj, District-Murshidabad within Jangipur, Sub-Division was 40 years when she came to depose in the year 2012. She is also the only person to be compensated under Section 357A of the Code of Civil Procedure Criminal Procedure who needs rehabilitation.

Relying on the decision of the Apex Court as reported in AIR 2015 SC 513 (Suresh & Anr. Vs. State of Haryana) and in view of the decision of the division bench of this Court as passed in C.R.A. No. 284 of 2009 Sufiar Rahaman @ Sk. Sufiar Rahaman & Ors. vs. the State of West Bengal) in which myself delivered the judgment on behalf of the bench, one unreported decision. I am inclined to award compensation under Section 357A of the Cr.P.C. in favour of PW 5, I reiterate, the widow of the victim, namely, Sudebi Das, if she has not been remarried by this time. Considering the financial status of the parties and the age of the victim (65 years) this court is not willing to apply the principle as laid down in Safiar Rahaman (supra) to apply the formula of 163A of the Motor Vehicles Act.

This Rs. 2 lakh (two lakh) is in consonance with the amount to be paid to the victim or the relations of the victim as per the provisions of West Bengal Victim Compensation Scheme, 2012. The compensation amount of Rs. 2 lakh will have to be disbursed within one month from the communication of the order by the Chairman of the DLSA, Murshidabad or by the Secretary of the said authority by account payee cheque in favour of that PW 5.

If there is no fund available to the said authority for this purpose then the chairman of the said authority will take up the matter with the Government for allotment of such fund to be disbursed to the said widow of the victim. The Government on receipt of such request must allot such fund within one month from the receipt of the request letter. As soon as such fund is made available to the said authority as contemplated by this Court the amount will be disbursed in the manner as stated above within a month from that date.

Thus, the appeal is disposed of in part with the alteration as regards the sentence and section of the IPC. The warrant of arrest has already been issued against the said appellant as per order of this Court dated 07.09.2015. I am told that the accused appellant is yet to surrender. The Additional Chief Judicial Magistrate, Jangipur, District - Murshidabad, is directed to take up the matter with the Superintendent of police of the said district so that the warrant of arrest is executed. The said ACJM is also directed to start proceeding against the sureties under Section 446 of the Cr.P.C. suspending the bail capacity of the registered sureties till the accused is apprehended or surrendered.

The department is directed to transmit a copy of this judgment along with the LCR to the learned trial Court forthwith.

Another copy of this judgment be forwarded to the Chairman, District Legal Services Authority, Murshidabad at Berhampore to apprise him regarding compensation as imposed by this court in favour of PW 5.

Another copy of this judgment be supplied to the Secretary, Government of West Bengal, Judicial Department, Writers'' Building, Kolkata to apprise him regarding the compensation amount as fixed by this Court so that the DLSA, Murshidabad gets allotment of Rs. 2 Lakh on that head as contemplated by this Court.

Officer is directed to supply urgent certified copy of this judgment to the parties, if applied for as early as possible.