Uday Mohanto vs State of West Bengal

R. Bhattacharyya, J.—This criminal appeal is directed against the order and judgment passed by the Additional Sessions Judge, Second Court, Burdwan, in Sessions Trial Case No. 20 of 1991 (Sessions Case No. 115 of 1991) convicting the accused for having committed an offence u/s 304 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 1000, in default, to suffer further rigorous imprisonment for three months.

The history of the litigation is briefly indicated to appreciate the points argued by the learned Advocates for the respective parties.

In short, the case of the prosecution is that on June 11, 1989, when P.W. 2 Pijush Dey along with his brother Ainiya Dey @ Sajal had been returning after attending a function at the village school at Simlon at about 9 p.m., the latter came under an attack of which Uday was the author. The weapon used in committing the crime was a ''bqtali''. The accused with the help of the above dealt a blow on the shoulder of that Amiya. The accused fled away from the place - a fact which caught the attention of Pijush along with incriminating weapon. Many local persons attended the place for the shriek given by them and, thereafter, he was removed to Public Health Centre and was treated by Dr. Ashis Bhailacharjee. He was of the opinion that the injured-could not be treated in the Public Health Centre and, accordingly, advised the injured party to remove him to the Kalna Hospital. He was then admitted to Kalna Hospital and his condition since grew worse. He was then removed to a Hospital whereupon he was admitted on June 13, 1989, at the Surgical Ward of Nil Ratan Sarkar Hospital and from there to the Neurology Department of that Hospital. In course of time, he was discharged from the Hospital and, thereafter, with the lapse of three months and odd tie passed away on September 8, 1989, i.e. almost about three months from the date of occurrence.

The Police took investigation of the case and on completion of investigation submitted the charge-sheet against the accused person under Sections 326/304 of the Indian Penal Code on December 8, 1989. The matter came up for hearing before the learned Addl. Sessions Judge who framed charge against the accused u/s 304 of Indian Penal Code and the contents of which were read over to the accused person who pleaded not guilty and claimed to be tried. The prosecution was examined as many, as 12 witnesses to haul up the accused. The learned Court upon evidence-on-record passed an order of conviction and sentence, when this appeal was preferred by the accused for reversal of the order of conviction and sentence.

There are certain undisputed facts which require to be set out to bring the matter within the brief compass for decision of the case. It is undisputed that Amiya suffered an injury, for which he was admitted to Hospital for his treatment. The next one in the row is that he was released from the Hospital but passed away after three months from the date of occurrence.

It is manifest that the prosecution has led an overwhelming claim that the accused Uday was the perpetrator of the crime who dealt blow by a ''batali'' or ''knife P. Ws. 1 and 2 have asserted in their evidence before the learned Court below that Uday was the assailant who dealt blow from the back of Amiya and stabbed him by a sharp-cutting weapon. It is needless to say that there was a lamp-post which stood close to the place of occurrence which helped them to identify the assailant.

The accused Uday fled away in a manner suggesting commission of offence, P.W. 2 has given an account of crime and the mode and manner the ''batal Fallow was dealt by Amiya on the accused. He has claimed in his evidence that he had booked the person who attended there and the Police Officer about the occurrence. It is needless to say that the statements were recorded by the Police where he did not say that Uday was the assailant of Amiya. He has not been corroborated by any witness that Uday was the assailant and the injured inflicted blow on him by the ''batali'', although P.W. 4 tried to take support from Pijush. P.W. 2 stands discredited by the evidence of other witnesses, medical report plus the evidence of Asit, P.W. 12, the I.O. The evidence of other witnesses, in our view, is not so material for the decision of the case as material evidence of the Doctors is. The evidence of P.W. 18 Asim Roy and P.W. 11 Ashis Bhattacharjee should be scrutinised in order to find from it as to whether the case of the prosecution bears any fiber of truth.

P.W. 8 Asim Roy has given an account in his evidence that the patient was admitted to Hospital on June 13. 1989. in N. R. S. Hospital, Calcutta, in the department of Neurology. He was discharged en September 1, 1989. But one material evidence is very significant to judge the reality or otherwise of the allegations. He has expressed in his evidence that the name of the assailant, if told by the patient or his relative, would certainly find room. in the injury report. It may be recalled that P. Ws. 2 and 4 have intransigently repeated in their evidence that it was but Uday who was the assailant of Amiya, but material disclosed during the trial that none of them told about Uday to the Doctor at the Public Health Centre nor the Doctors attached to N. R. 3. Medical College and Hospital. Therefore, the evidence of P.W. 8 launches the prosecution to its great disadvantage.

The next Doctor relied upon by the prosecution to found the claim does not hold the prosecution case as true either. The evidence of Mahananda Sarnakar, P.W. 10, has proved the black-hole to the case of the prosecution. The Doctor who held the post-mortem was P.W. 10. He found the following injuries:

One healed scar mark on left side of the back transversely placed at the level of D4 spine. Medical end of this scar 1/2" away from the D4 spine. Scar was 2-1/2" long 3 to 4 m.m. broad at the same time.

(2) One operative scar mark longitudinally placed slightly to the lect. of the mid-line from D2 to D6. Scar 5" long linier.

(3) 3 small 1/2" X 1/2" bed-shore over left side of the back Para vertebral laterl to D7 to D9 spine.

(4) One bed-shore 1" X 1" over sacram.

On dissection whole of the spinal canal was exposed to see the spinal chord. Evidence of laminectomy seen from D3 to D5 level. Extensive scaring seen in and around spinal chord from D3 to D5 level.

The injury found on spinal chord D3 to D5 may cause one''s death.

It appears from the cross-examination that the patient died postal of septicimia due to bed-shore. Even the evidence of Ashis Bhattacharjee, P.W. 11 lands the case of the prosecution to an impasse when it has been elicited during the cross-examination in the column of history of assault it is only noted that he was assaulted at 9.30 p.m., but the name of the assailant was not told.

It is interesting to find from the evidence of P.W. 2 as it would be pertinent for appreciation of the evidence of the prosecution case that he went to Public Health Centre in a jeep who claimed to have stated that his brother was assaulted by Uday. There could be no reason for him to conceal this valuable information or to hold back the name of the assailant, if really told. If he knew the name of the assailant, it would not definitely escape the attention of the Doctor (P.W. 11) and the name of the assailant would find room in the history of assault. Thus, the fact that the injury was inflicted upon Amiya, as given publicity by P. Ws. 2 and 4, is a canard, since not supported by any creditworthy evidence on record.

The prosecution could not furnish any explanation as to why the name of the assailant was not told to the Doctor - who examined the injured and by those who accompanied him to the Doctors.The only legitimate inference that can be drawn about the evidence is that they are all post-occurrence witnesses having had no opportunity to see the assault inflicted by Uday. There is another significant fact which should not go out of the pale of our consideration is Ex. 4 which has been treated to be a dying declaration of the deceased. It is worthy to note that incident occurred on June 11, 1989, and the maker of the dying declaration passed away on September 8, 1989. The maker" of the dying declaration has given an account of the occurrence on June 12, 1989, but not a word had been whispered by him about the assailant to the Doctors who treated him.

As indicated above he was admitted to the Kalna Hospital before June 12, 1989, and the declaration was made by the deceased about the occurrence on the same day. Therefore, there could not be any legitimate ground or reason to hold back the name of the, assailant to the Police and withholding the same to the Doctors who treated him at the Kalna Hospital or in the N. R. 5. Medical College and Hospital. The statement was recorded by Asit Banerjee, P.W. 12, the I.O. More so, P.W. 12 has asserted in his evidence that he closed the wounds.

Upon making assessment of ali the evidence, as indicated above, it proves that the case of the prosecution is blatantly false. Evidence of the prosecution has exposed the infirmity of the case as death in the instant case may be homicide as claimed by the prosecution not amounting to murder; but the author of the above heinous crime is still invisible. The judgment of the learned Court below suffers from material dent and the appreciation of the evidence made by the learned Court below, in our view, u/s 3 of the Evidence Act is incorrect. We do not agree with any of the findings of the learned Court below regarding the order of conviction and sentence which bears no foundation as the case of the prosecution has not been proved beyond the shadow of doubt.

15 In the light of the above, we are not satisfied with the order of conviction and sentence and allow the appeal with a direction to release the accused forthwith if he is in jail and refund the fine after release and he shall be discharged of the bail bonds unless wanted in connection with any other case.

Nure Alam Chowdhury J.

I agree.