Sunil Das vs State of West Bengal

Joymalya Bagchi, J.—Appeal is directed against the judgment and order dated 23.11.2009 passed by the learned Additional District and Sessions Judge, 1st Fast Track Court, Hooghly, convicting the appellant for commission of offence punishable u/s 326 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year more with a further direction that 75% of the fine, if realised, would be given to P.W. 10, Sonia Hembram.

The prosecution case against the appellant is that P.W. 10, Sonia Hembram was working as a day labourer in the agricultural field of the appellant; P.W. 1, the informant, is the elder sister of P.W. 10; the husband of P.W. 10 had deserted her and, hence, she was earning her livelihood as a day labourer; the appellant did not pay her wages and, as a result, P.W. 10 stopped working under him and started working elsewhere; on 26.07.2006, at about 5.30 A.M. when P.W. 10, P.W. 2 and P.W. 9 were working in the field under one Gopal Barik, appellant came there with a Hansua and called P.W. 10; P.W. 10 tried to flee away when appellant struck her on both the legs with Hansua causing severe bleeding injuries; there was a hue and cry and the appellant fled away from the place with Hansua; P.Ws. 2 and 9 with the help of local people shifted P.W. 10 to the District Hospital, Chinsurah where she was admitted for medical treatment for more than six months. She can somehow stand on her leg with help but is unable to work as a day labourer. P.W. 1 lodged written complaint on 05.08.2006, which was registered as Balagarh P.S. Case No. 61 of 2006 dated 05.08.2006 under Sections 341/326/307 of the Indian Penal Code. In conclusion of investigation, charge sheet was filed against the appellant under Sections 307/326 of the Indian Penal Code. The case being sessions triable was committed to the Court of Sessions, Hooghly and transferred to the Court of learned Additional Sessions Judge, 1st Fast Track Court, Hooghly for trial and disposal. Charges were framed against the appellant under Sections 307/326 of the Indian Penal Code. The appellant pleaded ''not guilty'' and claimed to be tried. Prosecution examined as many as 15 witnesses and exhibited a number of documents to prove its case. It was the specific case of the appellant that he had gone to the place of occurrence with a view to call the P.W. 10 for working under him and the P.W. 10 while fleeing away accidentally fell on the sharp edge of Hansua sustaining severe injuries. In conclusion of trial, the learned Judge by judgment and order dated 23.11.2009 convicted the appellant for commission of offence punishable u/s 326 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year more. By the self-same judgment the appellant was acquitted of the charge u/s 307 of the Indian Penal Code.

Mr. Manna, learned amicus curiae, submitted that there is inexplicable delay in lodging the First Information Report. The incident occurred on 26.07.2006 whereas the First Information Report was lodged on 05.08.2006. He further submitted that P.W. 10 was not interrogated during investigation and deposed for the first time in Court. There was no chemical examination of the seized hansua and P.W. 10 has failed to identify the same in Court. He submitted that wearing apparel of P.W. 10 was also not seized. He submitted that the conduct of P.Ws. 2 and 9, who claimed to be the eyewitness of the incident, is unnatural, as they did not try to save the victim. He accordingly, prayed for acquittal of the appellant.

Mr. Banerjee, learned Additional Public Prosecutor appearing for the State submitted that the evidence of P.W. 10 is convincing and has been corroborated by the medical evidence of P.Ws. 11 and 13. He submitted that the victim was treated in the hospital for more than six months. He further submitted that P.W. 10 was a destitute lady and was admitted in hospital and, as a result, there was delay in lodging the First Information Report. Such delay cannot shake the credibility of the prosecution case. Accordingly, he prayed for dismissal of the appeal.

I find from the defence of the appellant that he has admitted that he was at the place of occurrence at the relevant date and time. He also admitted that the victim had suffered injuries on her legs by the sharp edge of a Hansua. He, however, stated in his examination u/s 313 of the Code of Criminal Procedure that such injuries were an accidental one as the victim, P.W. 10 while trying to run away fell down on a hansua and hurt herself.

The most vital witnesses of this case are P.Ws. 2, 9, 10, 11 and 13. P.W. 10 is the injured victim. She has stated that on the fateful day at about 5.30 A.M., while she was working with P.Ws. 2 and 9 as day labourer, appellant came to the filed and struck her with hansua causing severe bleeding injuries on her legs. She stated that P.Ws. 2 and 9 removed her Chinsurah Hospital where she was admitted for her medical treatment. She was admitted in the hospital for about 7/8 months. She narrated the history of assault and disclosed the name of the assailant to the medical officer and the investigating officer. In cross-examination she admitted that she was conscious when she was brought to the hospital. She has also deposed that she used to work under the appellant and as her wages were not paid regularly by the appellant, she started working elsewhere. She has identified the appellant. The evidence of P.W. 10 has been corroborated by P.Ws. 2 and 9. The evidence of the injured witness gets support from the evidence of the medical witnesses, namely, P.Ws. 11 and 13. P.W. 11 is the Medical officer attached to Chinsurah Hospital, who treated the victim and referred her to orthopedic surgeon (P.W. 13). P.W. 11 detected the following injuries:

"1. There was sharp cut wound over right knee measuring 15 cm. involving muscle and bones.

There was a sharp cutting would over left knee joint measuring 10 cm. involving skin deep and joint capsule.

There was sharp cutting would over left calf region measuring about 5 cm. involving skin, muscle and hone."

The injuries were repaired by P.W. 13, Dr. Alfazuddin, orthopedic surgeon. P.W. 13 prepared a further injury report, which was exhibited as Exbt. 3. In cross-examination, he stated that the victim was conscious. Exhibit-3 shows that the victim narrated the history of assault stating that the appellant had assaulted her with a hansua. P.W. 13, Orthopedic Surgeon, who repaired the injuries of the victim found the following fracture injuries:

"Compound fracture on right fumer with sharp cutting injury over super patellar region (muscle deep). I also found lacerated injury over left knee into muscle deep. I also found sharp cutting injury over left leg into muscle deep with compound fracture fibula."

It is pertinent to note that there was no cross-examination of the witnesses on behalf of the defence suggesting that the injuries were accidental. P.W. 1 is the informant of the case who stated that the written complaint was scribed by Sukumar Das (P.W. 14) and she put her L.T.I. thereon. P.W. 15 is the Investigating Officer of the case. He seized the weapon of assault namely, hansua from the house of the appellant. In cross-examination he, however, admitted that he did not record the statement of P.W. 10 and not did cite her as a witness.

I am of the view that prosecution case has been proved beyond reasonable doubt by the evidence of P.W. 10, the victim and the medical evidences of P.Ws. 11 and 13. One cannot lose sight of the fact that the victim was an unfortunate deserted lady, who was trying to survive herself as a daily labourer in the agricultural fields. Upon being assaulted, she was shifted to hospital by her co-labourers (P.Ws. 2 and 9) where she was treated for more than six months. As a result, nobody felt the need to lodge information with the police with regard to the aforesaid offence till P.W. 1, her sister, who resided in her matrimonial home in a different village, lodged the complaint. In this factual backdrop, the delay in registration of First Information Report does not affect the credibility of the prosecution case. The evidence of P.Ws. 11 and 13 show that the victim was hit by a sharp cutting weapon, namely, hansua resulting in fracture injuries on both her legs and was admitted in hospital for her treatment for more than six months. Accordingly, I am of the opinion, that the prosecution case of assault on the victim by the appellant causing grievous injuries on her legs is established beyond reasonable doubt. In view of such consistent evidence, failure to identify the seized weapon as the weapon of assault by P.W. 10 cannot be said to be fatal. It is nobody''s case that the victim did not suffer injuries by a hansua. The appellant is an agriculturist and it is most likely that he would be in possession of a hansua. Hence, the prosecution case cannot be said to be improbablised by the fact that no investigation was conducted with regard to presence of blood stains on the seized hansua or the failure of P.W. 10 to identify the seized hansua. The conduct of P.Ws. 2 and 9 in not coming forward to save P.W. 10 has been criticised. There is no universal rule as to how a person would react when someone is attacked with a deadly weapon in his presence. P.Ws. 2 and 9 are not close relations of P.W. 10. They are merely co-workers of the agricultural field. Hence, it is most probable that a sense of self-preservation prevailed in their minds which desisted them from undertaking any heroic act of saving the victim from the murderous assault of P.W. 10. It would be wrong to disbelieve the consistent and reliable versions of P.Ws. 2 and 9 who were the most probable witnesses of the incident being co-workers in the agricultural fields where the appellant assaulted the victim. It is true that there is some remissness in the investigation of the case. However, such remissness in investigation does not go to the root of the prosecution case when evidence of prosecution witnesses are reliable and credible and has proved the case beyond all reasonable doubt.

In view of the aforesaid, I hold that the prosecution has been able to prove the case beyond reasonable doubt. Conviction of the appellant u/s 326 of the Indian Penal Code is upheld. Coming to the issue of sentence, I find that the victim is a destitute lady who is presently unable to work in the fields due to injuries caused to her. The appellant, on the other hand, has strong roots in the society and does not have any criminal antecedent.

Hence, I am of the considered view that sentence imposed on the appellant may be modified by reducing the substantive sentence of imprisonment while enhancing the fine payable by him and directing the same to be paid to the victim, P.W. 10, as compensation. Accordingly, the appellant is directed to suffer rigorous imprisonment for five years and to pay a fine of Rs. 25,000/- in default to suffer rigorous imprisonment for one year more. The entire fine amount, if realised, shall be paid to the victim, P.W. 10, Sonia Hembram.

The appeal succeeds in part.

Let a copy of the judgment along with Lower Court records be sent down to the court concerned at once.