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2006 Supreme(Cal) 775
High Court Of Calcutta
ALOK KUMAR BASU AND PARTHA SAKHA DATTA, JJ.
SUKURULLAH SEIKH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. A. 439 Of 2004
Decided On : 12/08/2006
ANUSUYA SINHA, ASIMESH GOSWAMI, JOYMALYA BAGCHI, Minoti Gomes
Headnote:
MURDER - FACT OF THE CASE - Appellant shot the victim, Khodabox, at his residence on 4th June, 2003 at about 10 p.m. due to a dispute over marriage. Khodabox succumbed to his injuries after 15 days. The appellant was convicted under Section 302 of the IPC and sentenced to life imprisonment. FINDING OF THE COURT - The court found that the prosecution proved beyond reasonable doubt that the appellant was responsible for the homicidal death of Khodabox. However, the court held that the appellant's conviction under Section 302 of the IPC was not sustainable as the prosecution failed to prove that the injury caused by the appellant was sufficient in the ordinary course to cause the death of Khodabox. ISSUES - Whether the prosecution proved beyond reasonable doubt that the appellant was responsible for the homicidal death of Khodabox. Whether the appellant's conviction under Section 302 of the IPC was sustainable. RATIO DECIDENDI - The court held that the prosecution proved beyond reasonable doubt that the appellant was responsible for the homicidal death of Khodabox based on the eyewitness accounts of P.W. 1 and P.W. 2, who were present near Khodabox at the time of the incident, and the statements of P.W. 3 to P.W. 8, who heard Khodabox utter the appellant's name as his assailant. The court further held that the appellant's conviction under Section 302 of the IPC was not sustainable as the prosecution failed to examine the doctor who conducted the post-mortem examination and there was no evidence to conclusively establish that the injury caused by the appellant was sufficient in the ordinary course to cause the death of Khodabox. FINAL DECISION - The court allowed the appeal in part and modified the conviction of the appellant from Section 302 of the IPC to Section 304, Part I of the IPC. The court sentenced the appellant to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for two months more. MAIN LEGAL POINT - In a case of homicidal death, the substantive evidence of the doctor who conducted the post-mortem examination is of great value to ascertain the real cause of death and to determine whether the offence of culpable homicide amounts to murder or not. CATEGORY - CRIMINAL LAW SUB-CATEGORY - MURDER
( 1 ) THIS appeal has been preferred by Sukurullah Seikh challenging his conviction and sentence under Section 302 of the I. P. C. recorded by the learned Additional Sessions Judge, 1st Track Court-III, Krishnanagar in the district of Nadia in connection with Sessions trial No. 1 (1) of 2004 corresponding to Sessions Case No. 5 (1) of 2004.
( 2 ) THE prosecution case in brief was that on 4th June, 2003, the present appellant came to the house of one Khodabox Seikh of Giridharipur under P. S. Nakashipara in the district of Nadia at about 10 p. m. and he demanded to marry the youngest daughter of said Khodabox. As Khoda Box and his wife Hanifa Bibi made protest to such demand of appellant Sukurullah Seikh, an altercation took place and soon thereafter appellant Sukurullah shot at Khodabox with a firearm. Khodabox was thereafter taken to Bethuadahari Health Centre and therefrom he was taken to Saktinagar hospital at krishnanagar and finally he was referred to nilratan Sarkar hospital at Calcutta where he succumbed to his gun shot injury.
( 3 ) HANIFA Bibi, wife of Khodabox Seikh on 7th June, 2003 narrated the incident before Nakashipara P. S. and on the basis of her narration, a formal complaint was drawn at the Police Station and thereafter on the basis of that complaint of Hanifa Bibi the present case was started which ended ultimately in submission of charge sheet under Section 302 of the I. P. C. read with section 25/27 of the Arms Act against the appellant.
( 4 ) THE learned Additional Sessions judge, however, on examination of police papers framed charge under Section 302 of the I. P. C. against the present appellant for commission of murder of Khodabox on 4th june, 2003 at Giridharipur. Appellant pleaded innocence to the charge framed against him and he claimed for trial.
( 5 ) DURING trial, prosecution examined in all 11 witnesses including P. W. 1 Hanifa bibi, P. W. 2 Olima Khatun, P. W. 6 Basir seikh, some relatives of Khodabox, one doctor who examined Khodabox, soon after his admission at Bethuadahari hospital, the officer who reduced into writing the complaint of Hanifa Bibi and finally, the investigating officer who conducted investigation and submitted charge sheet. 5a. It appears from record that appellant also examined one witness in support of his alibi and that witness was his wife, who, again happened to be the daughter of deceased Khodabox.
( 6 ) FROM the trend of cross-examination as well as from the examination of the appellant under Section 313 of the Cr. P. C. and also from the nature of evidence adduced by appellant, it was very much clear that appellant took two different pleas in support of his stand during trial and those pleas were that he was absent at the time of occurrence and that Khodabox received the gun shot injury not at his house as alleged by prosecution, but, at some other place.
( 7 ) THE learned Additional Sessions judge, after perusal of prosecution evidence specially the statement of P. W. 1 Hanifa Bibi and P. W. 2 Olima Khatun who were witnesses to the occurrence and with reference to the statement of P. W. 3 to P. W 8, came to the conclusion that on 4th June, 2003 appellant after coming to the house of khodabox at Giridharpur tried to take away p. W. 2 Olima Khatun with him with a view to marry her against her will and at this point when Khodabox and his wife Hanifa Bibi made protest, appellant, by using his fire arm, shot at Khodabox and Khodabox received a bullet injury on his left abdomen and ultimately died at Nilratan Sarkar hospital, Calcutta out of that gun shot injury. It appears from the judgment of the learned additional Sessions Judge that although the doctor who conducted post mortem examination at Nilratan Sarkar hospital could not be examined, since prosecution produced the original post mortem report and against admission of which in evidence, there was no objection from the side of the appellant during trial, the post mortem report was looked
