Susanta Dhali & Ors vs State Of West Bengal

Joymalya Bagchi, J

The appeal is directed against the judgment and order dated 25.02.2016 and 26.02.2016 passed by learned Additional Sessions Judge, Fast Track Court, Katwa in Sessions Trial No. 12 of 2009 arising out of Sessions Case No.105 of 2008 convicting the appellants for commission of offence punishable under Sections 302/149 of the Indian Penal Code, 148 and 143 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life each and to pay a fine of Rs.10,000/- each only, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Sections 302/149 of the Indian Penal Code, to suffer rigorous imprisonment for six months and to pay a fine of Rs.1,000/- each only, in default, to suffer rigorous imprisonment for three months more for the offence punishable under Section 148 of the Indian Penal Code and to pay a fine of Rs.50/- each, in default, to suffer rigorous imprisonment for five days more for the offence punishable under Section 143 of the Indian Penal Code; all the sentences to run concurrently.

The prosecution case, as alleged against the appellants is to the effect that on 10.4.2007 over a conflict regarding Kali Puja, the appellants along with others being variously armed with lathi, iron crowbar, scythe, chopper illegally entered the house of Sanjoy Sarkar, P.W.4 and Shyamal Mondal, the deceased and hurled abuses at them. When Sanjoy and Shyamal protested, they hit Sanjoy on the hand with a iron crowbar and injured Tulu Sarkar wife of Sanjoy Sarkar, P.W.2, on her hands with scythe. Appellant no.8, Pintu Singh assaulted Shyamal Mondal on his head with a shabal and the brain matter came out. The appellant no.1, Susanta Dhali hit Shyamal with a daa on his shoulder. They also assaulted Sova Mondal, P.W.3 with a chopper on the back. Local people arrived at the spot whereupon the miscreants ran away. The injured persons including Shyamal were admitted to Katwa S. D. Hospital. As condition of Shyamal was critical, he was shifted to Burdwan Medical College and Hospital. In the meantime, Ajay Mondal, brother of Shyamal Mondal lodged written complaint against the appellant Nos.1 to 9 and others under Sections 147/148/149/448/324/326/307 of the Indian Penal Code. On the next day, Shyamal Mondal expired and Section 302 of the Indian Penal Code was added to the array of offences. 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 the learned Additional Sessions Judge, Fast Track Court, Katwa. Charges were framed under Sections 148/326/307/302 read with Section 149 of the Indian Penal Code, Section 326 of the Indian Penal Code (with regard to assault on Sanjoy Sarkar, Tulu Sarkar and Shyamal Mondal), Section 307 of the Indian Penal Code (with regard to attempt to murder of Sanjoy Sarkar, Tulu Sarkar and Shyamal Mondal) Shyamal Mondal) against the appellants who pleaded no guilty and claimed to be tried.

In course of trial, prosecution examined 15 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. They, however, did not examine any witness to probabilise their defence. In conclusion of trial, trial Judge by the judgment and order dated 25.02.2016 and 26.02.2016 convicted and sentenced the appellants, as aforesaid.

Mr. Sekhar Kumar Bas, learned Senior Counsel with Mr. Ranadeb Sengupta, learned Advocate and Mr. Shiladitya Banerjee, learned Advocate appearing for the appellants argued that the prosecution case suffers from various infirmities. He took us through the deposition of P.W. 1, defacto complainant, and submitted although complaint was lodged after the death of Shyamal Mondal, an impression has been created that it was registered prior to his death. First information report is, therefore, an ante dated document. He further submitted that P.W.1 was a post occurrence witness. Criticizing the evidence of the injured eye witnesses, viz., P.Ws.2, 3 and 4, he argued that the said witnesses did not divulge the names of the assailants before the medical officer and their versions suffer from various embellishments and contradictions when compared with the earlier statements to the police. He also submitted that the ocular version of the said witnesses do not find sustenance from the medical evidence on record. Hence, the incident did not occur in the manner as sought to be depicted through the versions of the aforesaid witnesses. Accordingly, the appellants are entitled to an order of acquittal.

On the other hand, Mr. Arun Kumar Maity, learned Additional Public Prosecutor submitted that the evidence of the injured eye witnesses viz., P.Ws.2, 3 and 4 corroborate one and another and clearly establish the foundation of the prosecution case. Their versions are supported by the medical evidence of P.Ws.9 and 12 who treated the injured persons including the deceased Shyamal Mondal at Katwa S. D. Hospital and the post mortem doctor (P.W.14). The appellants had come armed to the place of occurrence and indiscriminately assaulted the injured witnesses and Shyamal Mondal. These facts clearly establish the ingredients of the offences against the appellants. Hence, the appeal is liable to be dismissed.

P.W.1, Ajoy Mondal is the brother of the deceased and the de-facto complainant in the instant case. He deposed that a dispute broke between appellant No.5, Santosh Dhali and Sanjoy Sarkar in connection with a Kali puja. On the fateful day i.e. 12.4.2007, the appellants and others went to the house of Sanjoy and abused him and his family members. Sanjoy, his wife Tulu, Shyamal (deceased) and his wife Shova raised objection. Thereupon, the appellants started assaulting them with sabal, daa, kaste and bamboo stick. He, however, could not stated who assaulted whom. Shyamal was assaulted on the back side of the head with a bomboo stick. Sanjoy was assaulted with a crowbar on the back. Tulu was assaulted by a sickle and Shova was assaulted by a daa on her back. When he went to the place of occurrence, the accused persons fled away through the house of Sasanta.

From the aforesaid narration, it appears that P.W.1, the de-facto complainant had arrived after the incident occurred and saw the appellants running away from the spot. Although P.W.1 may not be treated as an eye witness, his evidence corroborate the version of the injured eye witnesses and is admissible as 'res ges tae' under Section 6 of the Evidence Act. He has also proved his signature on the written complaint, Ext.1 which was scribed by P.W.15.

Referring to the evidence of P.W.1, it has been argued that the written complaint was lodged after he received information about the death of the deceased and, therefore, the said complaint is an ante dated one. I am unwilling to read the evidence of the said witness in the manner suggested by the learned Senior Counsel for the appellants. It appears from the record that the written complaint had been received by the police station in the evening of 12.4.2007 i.e. the date of occurrence at the time when Shyamal Mondal was admitted at Burdwan Medical College and Hospital. He died on the next day. Mere juxtaposition of the two incidents in the body of the deposition of P.W.1 may give an erroneous impression that the complaint was lodged on the next day i.e. 13.4.2007. However, if the entire evidence of P.W.1 is seen in the light of evidence of other witnesses particularly P.W.13 (I.O. who proved formal F.I.R. and commenced investigation on the day of occurrence itself i.e. 12.04.2007 and Ext.1, there is no doubt that the complaint was received in the evening of fateful day and not after the death of the deceased, Shymal Mondal.

Even otherwise, the prosecution case is strongly founded on the evidence of three injured eye witnesses viz., P.Ws.2, 3 and 4. All these witnesses in unison have deposed that the appellants had come in a body being armed with daa, kaste, sabal and lathi to the place of occurrence. They entered the house of Sanjoy Sarkar and abused him and his family members. When Sanjoy and his wife (Tulu, P.W.2) raised protest, she was assaulted by Bimal Dhali with a sickle. Her husband Sanjoy Sarkar, P.W.4 was assaulted by lathi. Shyamal Mondal (deceased) and his wife Shova intervened. Thereupon, Susanta assaulted Shova with a daa on her back. Pintu assaulted Shyamal on the head with a sabal. As a result, he suffered bleeding injury. Thereupon, Susanta Dhali assaulted Shjyamal with a daa on his shoulder. They raised hue and cry and the villagers came to the post. The injured persons were shifted to Katwa S. D. Hospital by vans. Shyamal was referred to Burdwan Medical College and Hospital as his condition was serious. He died in the said hospital on the next day. Subsequently, police seized shabol and kaste (weapon of offence) in a bamboo garden in front of the house of Pintu under a seizure list which was witnessed by P.W.2. The articles were identified by the witnesses in Court.

PW 5, PW 6 and PW 8 are post occurrence witnesses. PW 5 is also a witness to the seizure of blood stained earth from the place of occurrence. Golam Mostafa (PW 7) held inquest over the dead body of the victim. He proved the inquest report (Exhibit 4). He dispatched the dead body of the victim under deadbody chalan (Exhibit 5). He seized the alamats produced by a constable after post mortem examination of the deceased under a seizure list.

PW 9, 10, 12 and 14 are medical witnesses. PW 9, 10 and 12 are Medical Officers who are attached at Katwa Sadar Hospital at the material point of time. They examined the injured witnesses as well as the deceased.

Dr. P.N. Mitra (PW 9) deposed that on 12.04.2007 Sova Mondal was admitted at the hospital and he examined her on 13.04.2007. He proved the treatment slip (Exhibit 7/1). He had also examined Sanjoy Sarkar and prescribed x-ray of scapula, right shoulder, right chest of the patient. He proved the prescription (Exhibit 8 and 8/1).

Tapas Sarkar (PW 10) examined the deceased Shyamal Mondal on 12.04.2007 in the hospital. He found the neurological status of the patient was very poor. He was given primary management and thereafter referred to Burdwan Medical College and Hospital. He proved the treatment sheet (Exhibit 9).

Dr. Somnath Mukherjee (PW 12) examined Shova Mondal and admitted her in the hospital with a suspected fracture injury. He also examined Sanjay Sarkar with head injury. He prepared bed head tickets (Exhibit 10, 11 and 12).

Dr. P.S. Pal (PW 14) held the post mortem over the dead body of the victim and exhibited the post mortem report Ext. 15).

Ramranjan Patra (PW 11) and Parimal Goswami (PW 13) are the investigating officers in the instant case. Parimal Goswami (PW 13) commenced the investigation. He took up investigation on the day of occurrence. He proved the endorsement on the written complaint by the then officer-in-charge and the formal F.I.R. He visited the P.O., prepared rough sketch map. He seized control earth and blood stained earth from the P.O. under proper seizure list. He drew the formal FIR (Exhibit 14). He examined witnesses on 12.04.2007. He seized sabal and one kaste from Banana garden under a seizure list. He collected papers relating to U.D. Case. He collected post mortem report from the hospital.

On transfer of Parimal Goswami (PW 13) the investigation was concluded by Ramranjan Patra (PW 11) and he submitted charge sheet.

Evidence of PW 2, PW 3 and PW 4 clearly shows that they were present at the time when the incident occurred and had suffered injuries in the course of the incident. They were treated along with deceased Shyamal Mondal at Katwa Sadar Hospital and medical reports relating to their treatment have been proved by PW 9, PW 10 and PW 12. Hence, presence of the said witnesses at the place of occurrence and the fact that they had suffered injuries in the course of the incident has been proved beyond doubt. Deposition of the said witnesses are substantially corroborative of one another and show that the appellants came in a body being armed with various weapons and started abusing Sanjoy Sarkar (PW 4) and his family members. As a result of such provocation, Sanjoy (PW 4), Shyamal Mondal (the deceased) and their wives (P.W.s 2 and 3) protested. Consequently, the appellants indiscriminately assaulted them and their wives resulting in grievous injuries on Sova Mondal (PW 3), Sanjoy Sarkar (PW 4), Tutul Sarkar (PW 2). They also deposed that in the course of the incident Pintu Singh, appellant No.5 hit Shyamal Mondal with a sabal on the back side of his head. Sushanta Dhali assaulted him with a dha on his shoulder. As a result of such fatal injuries, Shyamal Mondal died on the next day at Burdwan Medical College and Hospital.

It has been argued that neither the injured witnesses nor the deceased gave out the names of their assailants before the Medical Officers. Evidence of PW 10 shows that the neurological status of Shyamal Mondal was very serious. Evidence of other medical officers PW 9 and 11 also shows that the injured witnesses had suffered serious injuries on their bodies. In view of the precarious condition of the deceased Shyamal Mondal the serious injuries suffered by the injured witnesses it is natural that they were unable to spell out the names of their assailants before the Medical Officers. However, in view of the consistency in their narration in Court and as the medical reports corroborate the serious injuries suffered by them in the course of the transaction, their credibility cannot be doubted due to the aforesaid omission. It has also been argued that there are embellishments/contradictions in the deposition of the witnesses when compared with their earlier statements to police. Deposition of the injured eyewitnesses are substantially consistent with one another. Even the manner of assault on them as well on the deceased find corroboration from the nature of injuries reflected in the treatment sheets as well as the post mortem report exhibited in the instant case. Post mortem report shows deep stitched injuries on the left parietal region as well as the vault of skull of the deceased. There is also a stitched injury over the left shoulder extending up to chest. The aforesaid injuries clearly corroborate the assault on the deceased by Pintu Singh on the head of the deceased with a sabal and by Susantal Dhali with a dha on his shoulder. Hence, I find little merit in the submission that the ocular versions of the witnesses do not find corroboration from the medical evidence. Thus, the genesis of the prosecution case and the participation of the appellants therein have been proved beyond doubt. However coming to the conviction of all the appellants under Section 302 read with Section 149 of the Indian penal Code I note that the occurrence took place due to a pre-existing dispute over Kalipuja. No doubt the appellants had come in a group and were armed. However, the manner in which the incident unfolded in the attending facts and circumstances of the case given an impression that the appellants shared a common object of causing grievous hurt to the victims but not their death. Suddenly in the course of the incident appellant No.1 and 8 had dealt murderous blows on the head and shoulder of the deceased. None of the other appellants had assaulted the deceased. Nor did they share the common object to murder Shyamal as the pre-existing dispute which prompted them to go in a body with arms to the place of occurrence was with Sanjoy (P.W. 5) and not with the deceased. No doubt they were armed and shared common object to cause grievous hurt but they certainly did not contemplate the murder of Shyamal as a likelihood in pursuance to the common object in the factual matrix of the case. Hence, in the backdrop of the facts of the case, I am of the opinion appellant nos. 1 & 8 who dealt murderous blows on the deceased are responsible for his death and the other appellants cannot be held to be constructively liable for their acts in the facts of this case. What could have been reasonably contemplated by the members of the unlawful assembly in the present case was one of rioting and grievous hurt but not one of murder of one of the victims. Hence, I am of the opinion that the conviction of appellant Nos.2 to 7 and 9 to 10 may be converted to under Section 326 read with Section 149 of the Indian penal Code instead of Section 302 read with Section 149 of the Indian Penal Code. In this regard, reference may be made to the ratio laid down by the Apex Court in Shambhu Nath Singh and Ors. Vs. State of Bihar, AIR 1960 SC 725 which is as follows:-

"6. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly." Jahiruddin v. Queen Empress, ILR 22 Cal 306."

Similar view has been expressed in Raghubir Singh Vs. State of Punjab, (1996) 9 SCC 233 (para 8) and Radha Mohan Singh Vs. State of U.P., (2006) 2 SCC 450.

However, culpability of appellant No.1 (Sushanta Dhali) and appellant No.8 (Pintu Singh) who had dealt with murderous blows on the deceased Shyamal Mondal resulting in his death is different. They were armed with dangerous weapons like sabal and dha and had hit on the vital parts of the body of the victim, namely, head and shoulder of the deceased respectively. The manner of assault, weapons used and the extensive injuries suffered by the deceased on his head and his shoulder as appearing from the post mortem report leave no doubt that they shared a common intention to murder the victim which may not have been shared by the other appellants. Accordingly, I am inclined to modify the conviction recorded against the appellant Nos.1 and 8 from under Section 302 read with Section 149 of the Indian Penal Code to under Section 302/34 of the Indian penal Code. Section 34 of the Indian Penal Code is not a substantive offence but a principal of constructive liability and in the factual matrix of the case particularly in view of exclusive role in murdering the deceased, conversion of their conviction from Section 302 read with Section 149 to Section 302 read with Section 34 of the Indian Penal Code does not cause prejudice to them or occasion any failure of justice.

Accordingly, I dispose of the appeal as follows:-

Conviction and sentence of the appellants under Sections 149/143 of the Indian Penal Code read with Section 148 of the Indian Penal Code are upheld.

Conviction of appellant Nos. 1 and 8 is recorded under Section 302/34 of the Indian Penal Code for the murder of Shymal Mondal and they are directed to suffer life imprisonment and to pay a fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for one year more.

Conviction of appellant Nos.2 to 7 and 9 and 10 are converted from one under Section 302 read with Section 149 of the Indian Penal Code to Section 326 read with Section 149 of the Indian Penal Code. Coming to the sentence to be imposed on them on such score, we find that appellant nos.2 to 7, 9 & 10 had not assaulted the deceased and the injuries inflicted by the said appellants on PWs 2, 3 and 4 though grievous, cannot be said to be life threatening. Accordingly, we direct that the appellant nos. 2 to 7, 9 & 10 shall suffer rigorous imprisonment for three years each and to pay a fine of Rs.5,000/- each, in default, to suffer rigorous imprisonment for six months more for the aforesaid offence. All the sentences shall run concurrently.

Appellant No.7 has already served out his sentence, as aforesaid. He shall be forthwith released from custody (if not wanted in any other case) upon executing a bond to the satisfaction of the Trial Court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure.

Bail bonds of the appellant Nos.2 to 6, 9 and 10 are cancelled. They are directed to forthwith surrender before the trial Court and serve out the remainder of their sentences in accordance with law failing which the trial court shall take appropriate steps for execution of sentence and realization of fine in accordance with law.

The period of detention, if any, undergone by the appellant Nos.1 and 8 during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure.

Copy of the judgement along with Lower Court Records be sent down to the trial court at once for necessary compliance.

Urgent photostat certified copy of this order, if applied for, shall be given to the parties, as expeditiously as possible on compliance of all necessary formalities.

I agree.