Sunil Dhak vs The State of West Bengal

Indrajit Chatterjee, J—This court is hearing this appeal as against the judgment and order of conviction respectively dated 17.05.2013 and 18.05.2013 passed by the learned Sessions Judge, Bankura in Sessions Trial No. 1(8)2008 arising out of Sessions Case No. 11(7)2008 wherein the appellant was convicted in respect of the offence punishable under Section 304 part I of the IPC and was sentenced to suffer Rigorous Imprisonment for five years with fine of Rs. 1,000/- in default for Rigorous Imprisonment for another six months.

The case arose out of Chatna P.S. Case No. 34/07 dated 06.07.2007 under Section 304 of the IPC as per complaint filed by one Anna Mal which was scribed by one Goutam Mal. In the FIR it was disclosed that this Anna Mal is the widow of the victim. This incident took place on 29.06.2007. The age of the victim was 25 years at that point of time and the said victim Ramanath Mal @ Pucha was returning in a cycle after doing his days work. Suddenly his cycle dashed with one passerby on the Kamalpur field to Purulia road (as per sketch map Ext. 6) that is the present appellant Sunil Dhak and the victim after the accident suddenly fell down with his cycle but this appellant then assaulted the victim mainly on his abdomen and on other portions of his body. The victim received several injuries and he was left on the road. The full brother of the victim Sadhan Mal (PW 9) was just behind him and he was also going to his village when he found the victim lying on the road, he went to that place and thereafter took him in a van rickshaw to their house. It may be mentioned that this PW 9 was at bit distance from the victim and the accused appellant when the incident took place but he could not reach the spot at the time of the incident and saw the accused to flee away after assaulting his elder brother. When the victim was taken to his house he informed the incident to his wife Anna Mal (PW 4) and to his other relations.

On the next date the victim was admitted at Bankura Hospital where the victim died on 05.07.2007 at about 11 AM. Unfortunately, the case was registered when he was admitted at the Hospital. The hospital authority also did not inform the police authority regarding the incident. The case was instituted only after the death of the victim. The investigation was taken up by S.I. Dhirendra Nath Dutta of Chatna police station. During the course of investigation he collected the original post mortem report (ext. 5) which was done by two doctors namely PW 10 Dr. Proloy Majumder and by another Dr. Biswajit Sukul (not examined). This IO also prepared a sketch map marked as Exbt. 6 and after investigation submitted charge-sheet against the accused for the offence punishable under Section 304 of the IPC.

A Sessions Case was registered and Sessions Trial No. 1(8)2008 started. The accused pleaded not guilty and claimed to be tried. During the course of trial as many as 11 (eleven) witnesses were examined and the prosecution produced some documentary evidence including the FIR, Sketch Map, Post Mortem Report and the formal FIR. The accused was examined under Section 313 of Cr.P.C., he only denied as to the incident and pleaded his innocence. No defence witness was adduced. I have already said as to the result of the Trial Court.

The defence made out a case before the trial court through suggestions that the victim fell down on the ground from cycle and sustained injuries. In his 313 examination the accused only claimed that he was falsely implicated and that he was innocent.

It was argued on behalf of the defence by Mr. Ganguly that actually there was no eye witness of the incident he took me to the evidence of PWs-3 and 9 to convince this Court that even they did not see the incident. He also submitted that actually the cause of death could not be proved before the learned trial court as neither the bed head tickets nor the reports of the doctor who conducted the operation on the body of the victim after the victim was admitted at Bankura Medical College and Hospital were brought on record. He further submitted that the doctor who made the operation was not examined. He further submitted that the evidence was perfectly lacking even to convict this accused appellant in respect of the offence punishable under Section 304 Part-I of the IPC.

In counter to all these, it was submitted on behalf of the State by Mr. Dutta, Advocate that evidence of PWs-3 and 9 cannot be brushed aside and they duly proved that the victim was assaulted by fists and blows and by kicks which resulted in his death after some days in the hospital. He submitted that the de facto complainant being a rustic, illiterate village woman was totally ignorant about the value of lodging one FIR in time. He admitted that there was lapse on behalf of the prosecution in not producing proper medical papers including the bed head tickets of the victim.

In reply Mr. Ganguly submitted that the accused appellant is a poor man and is being defended with the help of the High Court Legal Services Committee and he is already in custody since 18/05/2013 till date and prior to date he was in custody at the pre-trial stage from 14/07/2007 to 09/10/2007.

Let me now say in brief as regards evidence of the PWs 1 and 2. PW 1 is the formal witness who took the dead body to the dead house for the post mortem examination of the victim as per challan (Exbt. 1). PW 2 is another formal witness being the Sub-Inspector of Police, who prepared the inquest report in respect of Bankura P.S. UD Case No. 309/07 dated 06.07.07 on the dead body of the victim.

PW 3 is one Laba Mal who deposed that the victim on 14th Ashar before two years "of recording his evidence" was going towards Dholpur from Kharbana on his way back to his house at about 7 p.m. The victim Ramanath Mal was going on a cycle and the present appellant Sunil Dhar was walking on foot. He further deposed that the cycle of the victim dashed the appellant and thereafter Sunil Dhar assaulted the victim with fists and blows and by kicks. This witness went to the spot and found Ramnath lying on the ground and thereafter Sadhan Mal (PW 9) appeared at the spot and took the victim to his house in a rickshaw. He also deposed that Ramanath died after he was admitted in the hospital. It is true that this witness did not see the incident but he saw what happened thereafter.

PW 4 is Anna Mal that is the FIR maker and also widow of the victim. Admittedly he did not see the incident but after the victim came to house he disclosed to her that accused-appellant assaulted him with fists and blows and by kicks. She also deposed that the victim was taken to Bankura Medical College & Hospital where he died on 05/07/2007 and thereafter she lodged the FIR written by Goutam Mal. It is apparent from her cross-examination that PW 9 is her brother-in-law. PW 3 is her bhasur (by village courtesy), PW 5 is her Sasuri (mother-in-law) and PW 8 Kanai Mal was the agnatic uncle of the victim. It is clear from her evidence that when the victim was admitted in the hospital the doctor asked him as to how he received his injuries and her husband (the victim) told the doctor how he received the injuries.

The evidence of PW 5 is of no importance as she did not see the incident. She did not depose that she even heard about the incident from the victim. PW 6 is another formal witness who scribed the FIR. PW 7 is another formal witness who filled the FIR and started the case.

PW 8 is Kanai Mal, one agnatic uncle of the victim. This witness also did not see the incident but he claimed on oath that he heard as to the incident from the victim and deposed as to what he heard. PW9 is Sadhan Mal, the star witness of this case who has supported the prosecution story and deposed that on that date he was just behind his elder brother (victim) that the by-cycle of the victim dashed the accused and thereafter the accused-appellant assaulted the victim on his belly with kick. He also deposed that he was also returning from Kharbona. This witness thereafter took the victim to their house and the next morning the victim was admitted at Bankura Hospital for treatment where he died after 5 or 6 days. This witness also deposed that he saw the accused going away after assaulting his elder brother. I have gone through the cross-examination of this witness there is nothing in his cross-examination to discredit this witness.

PW-10 is doctor Pralay Majumdar who along with another doctor conducted the post mortem examination on the dead body of the victim on 6th July, 2007 and found one surgically made stitched up wound and that was the main injury he noticed. The doctor would not have banked to much on that injury practically when it was a stitched wound and the victim was operated much prior to the post mortem examination. Regarding the other injuries he noted one haematoma over mesentery adjacent to attachment with intestine on dissection. He also found one deep bruise on the right abdominal wall, one deep bruise on the right side of ant chest wall and also one deep bruise over the left side of anterior chest wall. The doctor opined that the injury Nos. 2, 3, 4 & 5 might be caused if someone is assaulted by fists and blows and kicks.

I have taken into consideration those injuries according to me such injuries were not enough to cause the death of the victim. The answer as to the death of the victim lies on the abdominal injury that is injury No. 1 as noted by the said doctor. The doctor rightly deposed that since injury No. 1 was surgically interfered and it was not possible for him to make any comment about that. Thus the evidence was lacking as regards the cause of death of the victim.

PW-11 is Dhirendra Nath Dutta that is the IO of this case who along with other things deposed that he collected the S.C.D from Bankura P.S. and also collected the bed head tickets and post mortem report but unfortunately those were not produced before the court. It is a million dollar question why the prosecution did not produce those vital documents before the trial court. This witness submitted charge sheet against the offence punishable under Section 304 of the IPC.

I have gone through the evidence of PWs in details and I have already mentioned the vital parts of their examination before the learned trial court. If the evidence of PWs-3 and 9 are properly scanned it cannot be said that they did not see even a portion of the incident. It is clear from their evidence that they saw from a distance that this accused appellant assaulted the victim by fists and blows and also by kicks. There is no reason to discard their otherwise established evidence.

This court is not unmindful of the fact that in the FIR there is no mention that PW-3 Laba Mal witnessed the incident but there is no reason to disbelieve his evidence only on that score. On this point I can state here the decision of the Apex Court as reported in Raj Kishore Jha Vs. State of Bihar and Others, AIR 2003 SC 4664 : (2003) CriLJ 5040 : (2003) 2 JT 354 Supp : (2003) 8 SCALE 271 : (2003) 11 SCC 519 : (2003) 4 SCR 208 Supp : (2003) AIRSCW 5095 : (2003) AIRSCW 5095 : (2003) 7 Supreme 152 : (2003) 7 Supreme 152 wherein the Apex Court held that simply because names of witnesses were not mentioned in the FIR that by itself cannot be a ground to doubt their evidence. It is further observed that there is no requirement of mentioning the names of the witnesses in the FIR.

It was argued on behalf of the defence that in the sketch map the hotel of this Laba was not shown. This Court is also not unmindful of the evidence of PW-3 that the incident took place near the Dak Bungalow. This Dak Bungalow has been well depicted in the sketch map (Exbt. 6) prepared by the IO and shown as ''D'' and as such even though the hotel was not depicted in the sketch map that cannot erase the evidence of PW-3 and the presence of PW-3 also cannot be ruled out.

It is true that the widow of the victim did not see the incident. It has been well established from the evidence on record that the victim told to PWs-4, 5, 8 and also to PW-9 as to how he received the injuries on the date of the incident. The victim died after six days of the incident that is on 05/07/2007. Myself put a question to Mr. Ganguly as to what the victim narrated to these PWs just after the incident can be treated as dying declaration, as the victim died after some days thereafter. It was submitted by Mr. Ganguly that as no dying declaration of the victim was recorded by any authority and that the FIR was lodged after seven days of the incident such statement made to those PWs cannot be treated as a dying declaration.

Myself is not at one with Mr. Ganguly. It may be noted that in the cross-examination of these witnesses referred to above there was no denial on the part of the defence that the victim did not tell the incident to those witnesses and as such the statement of those witnesses regarding this has gone unchallenged. On this point one question needs further answer that is whether such injuries led to the death of the victim. This question has not been properly answered by the autopsy surgeon PW-10 about which I have already said while examining his evidence. I have gone through the evidence of said doctor. The other doctor Biswajit Sukul was not examined. This autopsy surgeon only saw the injuries after the victim was surgically operated. Naturally that surgeon who did such surgery was the best person to say what injury the said doctor noticed on the body of the victim. This court is well aware of the opinion expressed by PW-10 that the death was due to the effects of the injuries as described in the P.M. report- ante mortem in nature. I doubt as to how a doctor can say this only after opening the surgically operated wound. The evidence of this doctor cannot be accepted as it is now. If the death can be proved to be the result of the injuries sustained in the hand of the accused appellant then certainly the statement made orally by the victim to PWs-4, 5, 8 & 9 can safely be treated as dying declaration. Such statement cannot be disbelieved simply because the FIR was lodged after some days which has been duly explained in the FIR or that due to the negligence of the hospital authority the police was not informed to take steps for recording the dying declaration. It may be that when the victim was admitted or operated the doctor/doctors who attended the victim did not think that the victim may die necessitating the recording of dying declaration by the doctor or doctors which is very much admissible in evidence.

I have already told that the bed head ticket was also not produced before the trial court even though the IO deposed that it was collected by him. This IO also collected the Subsidiary Case Diary (must be of that U.D. Case No. 309 of 2007 dated 06/09/2007 of Bankura Police Station) and enquiry report was thus naturally submitted after the closure of that U.D case.

The IO of this case except deposing a single line that he seized a bed head ticket did not play any role regarding the production of such bed head ticket before the trail court. The trial court was not vigilant enough even after scrutiny of the evidence of post mortem doctor that the victim was operated in that hospital and such doctor who operated the victim was the best witness to arrive at a just decision that whether the victim''s death was caused due to assault by the accused appellant or that the victim received injuries due to his sudden fall from the cycle after the said accident. It might be that the handle or the paddle of the bicycle hit the abdomen of the victim resulting heavy internal injury. The evidence of the IO is very much there before the learned trial court that the bed head ticket was seized but unfortunately the trial court did not notice the same seriously and also did not consider that due to non-production of such vital medical report the victim''s family as well as the accused appellant might have been denied from substantial justice.

Just decision is a vital word in criminal administration of justice. The criminal courts are armed with so many powers to bring vital witnesses or documents before the court to arrive at a just decision. The duty of the court is not like an umpire to see the court proceeding but the court is the watch dog of the criminal trial. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded Vinod Kumar Vs. State of PunjabAIR 2015 SC 1206 : (2015) CriLJ 1442 : (2015) 1 RCR(Criminal) 647 : (2015) 1 SCALE 542 : (2015) 3 SCC 220 : (2015) 1 SCC(L&S) 712 . In arriving at a just decision the court will not think in whose favour it''s order will go in summoning any witness or asking for production of some documents. The paramount consideration of the court will be ''just decision''. Here the parties before the trial court came from a downtrodden family and as such the investigating agency was not helpful to them and same thing will also apply to the prosecuting agency.

The widow of the victim was not aware regarding the importance of filing of the FIR as soon as the victim was admitted to the hospital. She was with her husband at the hospital. Her husband was operated in the hospital. A very few relations actually came to her help. The evidence of PW 5 and 8 will show that they even did not go to the hospital to admit the victim with PW 4 and 9. The doctors who attended the victim did not feel that it was their duty to inform the police, if it was actually a case assault on the victim by the accused appellant. Had the hospital authority been more careful it would have informed the police authority who could have arranged for recording of the dying declaration. Thus I reiterate that what the victim Ramanath told to PWs 4, 5, 8 and 9 could have been safely treated as dying declaration had the victim died due to assault by the accused appellant.

Thus this Court is satisfied that there was failure of justice both for the victim party and also for the defence during the course of trial before the trial court. Interest of justice demands that the judgment, order of conviction and sentence against which the present appeal has been preferred be set aside and I do that.

The case is remitted back to the trial court on limited remand. This Court is not inclined to take additional evidence under Section 391 of the Cr.P.C. as in that case the parties may lose one forum of appeal. This court directs the trial court to act as stated below,

"(1) On receipt of the record the learned trial court will ask the accused appellant as to whether he needs any legal aid. If the accused prays as such, if he is entitled then he must be given one Group-A advocate from the panel prepared by the DLSA, Bankura. The trial court will also issue notice to the public prosecutor regarding the order of remand as passed by this court. This must be done within three days from the appearance of the accused and receipt of the record.

(2) Thereafter Superintendent of Bankura Medical College and Hospital will be directed to produce the bed head ticket of the victim, who died in bed No. 184 of the Male Surgical DN Word on 05.07.2007.

(3) On receipt of the B.H.T. the doctor or doctors who admitted the victim and treated him thereafter must be examined as a court witnesses to ascertain what the victim told to the doctor/doctors at the time of his admission, and on other points as may be proved by the doctor which has connection with this case.

(4) Must ascertain from the B.H.T who operated the victim and the said doctor be summoned to attend the court on the same day along with the other doctors as mentioned in item No. (3) to prove medical report as regards such operation etc.,

(5) Will recall the post mortem doctor (PW-10), if it is necessary, in view of the evidence of the other doctors. The defence will have the right to recall this PW-10 under Section 311 of the Cr.P.C.,

(6) Must direct the Superintendent of Police, Bankura to produce the entire record of the Bankura P.S. U.D. Case No. 309 of 2007 dated 06.07.2007 and may recall PW-2 SI Asis Kar who conducted the inquest examination on the dead body of the victim and PW-11 SI Dhirendra Nath Dutta or examine any witness as regards the U.D. case.

(7) Examine the accused appellant under Section 313 Cr.P.C. on such additional evidence only, and thereafter proceed with the trial further as per the provision of the Cr.P.C. and will deliver a fresh judgment keeping in mind the observations of this court made in the judgment.

The learned trial court, who is none else but the Sessions Judge, must make all endeavours to complete the trial within six months from the date of receipt of the record on day-to-day basis as contemplated under Section 309 of Cr.P.C. and must keep in mind the directions of the Apex Court as given in Vinod Kumar Vs. State of PunjabAIR 2015 SC 1206 : (2015) CriLJ 1442 : (2015) 1 RCR(Criminal) 647 : (2015) 1 SCALE 542 : (2015) 3 SCC 220 : (2015) 1 SCC(L&S) 712 .

At the time of delivery of judgment the trial court will keep in it''s mind that the appellant remained in custody from 14/07/2007 to 09/10/2007 and thereafter from 18/05/2013 till he may be released on bail after acceptance of the bail bond about which this Court is going to pass an order."

Considering the order of remand the accused appellant Sunil Dhak be released on bail of Rs. 2,000/- with two sureties of Rs. 1,000/- each to the satisfaction of the Chief Judicial Magistrate, Bankura in Chatna P.S. Case No. 34/2007 dated 06/07/2007(G.R. Case No. 394 of 2007 of the Chief Judicial Magistrate, Bankura). He may be release if he is not wanted in any other case. On his released on bail the accused appellant must appear before the Sessions Judge, Bankura, in connection with this case within two days of that.

So long I was regarding the trial of this case. Something must be done in favour of the Anna Mal (PW-4) the widow of victim Ramanath Mal then aged 22 years, of village Dalpur, Police Station Chatna who lost her husband aged 25 years and also to Ragi Mal (PW-5) widow of late Kalipada Mal of the same village who lost her son, Ramnath Mal. Naturally they need rehabilitation, if Anna Mal has not been remarried. If Anna Mal has been remarried then the entire compensation will go to the mother of the victim that is Ragi Mal (PW-5). It is to be ascertained by the Secretary, District Legal Services Authority as to that remarriage.

Relying on the decision of the Apex Court as reported in AIR 2015 SC 513 (Suresh & Another v. State of Haryana) and in view of the Division Bench decision of this court as passed in CRA No. 284 of 2009 in which myself delivered the judgment on behalf of the Bench on 06.07.2015 (unreported) I am inclined to award interim compensation under Section 357A Cr.P.C. in favour of those PWs-4 and 5 of this case that is Anna mal and Ragi Mal respectively to the tune of Rs. 2,00,000/- (two lakh) to be shared equally. Such payment be made only by A/C payee cheques in the names of the recipients. If Anna Mal has remarried then the entire amount be given to Ragi Mal as total compensation. Anna Mal being not remarried then the principle laid down by court in CRA No. 284 of 2009 will apply.

The Member Secretary, DLSA, Bankura is directed to adjudicate the final compensation to be passed on formula contemplated in the Division Bench judgment referred to above. The relevant portion is quoted below.

"We have had occasion to consider the West Bengal Victim Compensation Scheme 2012 wherein the maximum compensation to be awarded to a victim for loss of life is fixed at Rs. 2(Two) lacs. This sum is insufficient when compared with loss of a dear one''s life.

It is true that human life is priceless but sometimes death comes otherwise than in normal circumstances and to combat this several compensation schemes have been framed by the Government both Central and State. The most favourable one being the scheme framed under the Motor Vehicles Act, 1988 and Sections 163A and 166 of the said Act in particular.

The 2012 Compensation Scheme has not set out the reasons for fixing the compensation amount. In fact, the Motor Vehicles Act has set out a formula, namely, the factors that need to be looked into while granting compensation, that is, the income of the person at the time of the road traffic accident and his age at that point of time. This formula is reasoned but compensation under the 2012 scheme is without any basis. The State Legal Services Authority (SLSA) OR District Legal Services Authority (DLSA) has been given authority to make enquiry for purposes of fixing compensation. Loss of life whether under the Motor Vehicles Act or Victim Compensation Scheme stands on the same footing and, therefore, the formula laid down under the second schedule of the 1988 Act ought to be followed while granting compensation to a victim and it is only for this purpose that Rs. 2(Two) lacs is granted to each of the victims as an interim compensation and Member Secretary, DLSA, Birbhum at Suri is directed to adjudicate the final compensation based on the formula contemplated under the Motor Vehicles Act, 1988. The Secretary, DLSA, Birbhum at Suri is directed to make payment of the interim compensation within one month from the date of receipt of the order passed and if the funds are not available with DLSA, the State of West Bengal will disburse such amount available within a month from the date of receipt of a copy of this judgment and within a month, thereafter, DLSA, will disburse the same to each of the victim or the legal heirs, as the case may be.

The final compensation to be fixed by DLSA will also be disbursed within one month from the date of determination of such sum. In the event funds are not available with DLSA, the State of West Bengal will disburse such amount within a month from the date of receipt of DLSA''s order and payment be made within a month thereafter."

The Member Secretary of the DLSA, Bankura is directed to make payment of the interim compensation within one month from the date of receipt of a copy of this judgment to be supplied by the trial court and if fund is not available with DLSA, the State of West Bengal will make such amount available within a month from the date of receipt of a copy of this judgment and within a month thereafter the DLSA Bankura will disburse the sum to PW 4 and 5, as the case may be. The payments to the recipients must be made by A/C payee cheque only.

The final compensation to be fixed by the DLSA will also be disbursed within one month from the date of determination of such sum. In the event the funds are not available with the DLSA, the State of West Bengal will allot such amount within a month from the date of receipt of DLSA''s letter of request for allotment. On receipt of such allotment the compensation amount must be paid by A/C payee cheques to the recipients mentioned above.

The criminal section is directed to send a copy of this judgment along with LCR to the Sessions Judge, Bankura, forthwith who will communicate the relevant portion of the judgment to the Chief Judicial Magistrate, Bankura, to process the release of the accused appellant on bail. The District Judge who is also the Chairman of the District Legal Services Authority will communicate the relevant portion of the order to the Secretary, DLSA for compliance as noted above.

Certified copy of the judgment be supplied to the parties, if applied for as expeditiously as possible. Let a copy of this judgment be forwarded to the Secretary, Government of West Bengal, Judicial Department, Writers'' Building, Kolkata - 700 001, to see that the order of compensation as directed by this Court can easily be disbursed to PW 4 and PW 5, namely, Anna Mal and Ragi Mal respectively, as the case may be.