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2006 Supreme(Cal) 747
High Court Of Calcutta
Before Pravendu Narayan Sinha And Partha Sakha Dutta, JJ.
SHYAMAPADA BAURI - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. A. 77 Of 2001
Decided On : 11/29/2006
KAZI SAFIULLA, MADHURI DAS, SWAPAN KUMAR MALLICK, TAPAS KUMAR GHOSH
Headnote:
CRIMINAL APPEAL - Murder - Common intention - Section 302/149 and 148 of IPC - Deceased was assaulted by the appellants with lathi, tangi, axe and kural as a result of which he sustained severe bleeding injury on different parts of his body and fell down on the field and expired at the hospital - HELD, the prosecution was able to prove its case beyond all reasonable doubts and to bring home the charge under Section 302/149 of I.P.C. and the charge under Section 148 of I.P.C. against the appellants.
Fact of the Case:
The deceased Netai Bauri left his house for taking bath in a pond known as 'baripukur'. While he was proceeding to the said pond through a field, the appellants namely, Shyamapada Bauri, Anath Bauri, Sanatan Bauri @ Sonai, Juddha Bauri, Krishna Kanta @ Krishna Bauri, Ram Chandra @ Rampada Bauri and one Harachand Bauri forming an unlawful assembly attacked Netai Bauri out of previous grudge. The accused persons assaulted Netai Bauri with lathi, tangi, 'kural' i.e. axe as a result of which he sustained severe bleeding injury on different parts of his body and fell down on the said field. The injured Netai Bauri was brought to Patel Nagar PHC and from there he was transferred to Suri Sadar hospital. Md. Golam Mortuja (P.W. 1) lodged the FIR (ext. 1) and on the basis of it Mohammad Bazar P. S. Case No. 28 dated 8.5.93 was started. During investigation the injured Netai Bauri expired at about 12.15 at night, i.e. 00.15 a.m. of 9.5.93, and after his death Section 302 of I.P.C. was added. After investigation the police submitted charge sheet and the trial that followed ended in conviction of the six appellants mentioned above. The accused Harachand bauri expired during pendency of the case and did not face the trial.
Finding of the Court:
The prosecution was able to prove its case beyond all reasonable doubts and to bring home the charge under Section 302/149 of I.P.C. and the charge under Section 148 of I.P.C. against the appellants 1 and 3 to 6.
Issues: Whether the prosecution was able to prove its case beyond all reasonable doubts and to bring home the charge under Section 302/149 of I.P.C. and the charge under Section 148 of I.P.C. against the appellants 1 and 3 to 6.
Ratio Decidendi: 1. The evidence of the witnesses, the medical evidence of the doctors and the circumstances show that the prosecution was able to prove its case beyond all reasonable doubts. 2. Non-examination of the Investigating Officer in this case is not fatal for the prosecution. 3. When the prosecution case is well established and there is no ground to disbelieve the evidence of the witnesses, non-examination of the I.O. cannot be a ground of acquittal and to draw adverse presumption under Section 114 (g) of the Indian Evidence Act.
Final Decision: The appeal in relation to appellant Nos. 1 and 3 to 6 is dismissed and the order of conviction and sentence passed by the learned trial Court against them are affirmed. The appeal in respect of appellant No. 2 Anath Bauri is allowed and Anath Bauri is found not guilty under Sections 302/149 of I.P.C. and also under Section 148 of the I.P.C. He is hereby acquitted and set at liberty and discharged from his bail bonds, if not wanted in connection with any other case.
( 1 ) THIS appeal is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, 3rd Court, Suri in sessions Trial No. 1 of August, 1999 (Sessions Case No. 81 of 1993) thereby sentencing the appellants to suffer imprisonment for life and to pay a fine of Rs. 2,000/- each in default to suffer R. I. for six months each for the offence under sections 302/149 of the Indian Penal Code (in short I. P. C. ). The appellants were also convicted under Section 148 of the I. P. C. but no separate sentence was imposed on them for the said offence.
( 2 ) THE prosecution case, in short, is that on 8. 5. 1993 at about 5. 30 p. M. Netai Pada Bauri left his house for taking bath in a pond known as 'baripukur'. While he was proceeding to the said pond through a field, the appellants namely, Shyamapada Bauri, Anath Bauri, Sanatan Bauri @ Sonai, juddha Bauri, Krishna Kanta @ Krishna Bauri, Ram Chandra @ Rampada Bauri and one Harachand Bauri forming an unlawful assembly attacked Netai Bauri out of previous grudge. The accused persons assaulted Netai Bauri with lathi, tangi, 'kural' i. e. axe as a result of which he sustained severe bleeding injury on different parts of his body and fell down on the said field. Sadhu Bauri (since deceased), Lakur Ghosh @ Lagar Ghosh (P. W. 4), Bablu Bauri (P. W. 3) and many others of village Saluka saw the incident. The injured Netai Bauri was brought to Patel Nagar PHC and from there he was transferred to Suri Sadar hospital. Md. Golam Mortuja (P. W. 1) lodged the FIR (ext. 1) and on the basis of it Mohammad Bazar P. S. Case No. 28 dated 8. 5. 93 was started. During investigation the injured Netai Bauri expired at about 12. 15 at night, i. e. 00. 15 a. M. of 9. 5. 93, and after his death Section 302 of I. P. C. was added. After investigation the police submitted charge sheet and the trial that followed ended in conviction of the six appellants mentioned above. The accused Harachand bauri expired during pendency of the case and did not face the trial.
( 3 ) IN order to prove its case the prosecution examined as many as 13 witnesses namely, P. W. 1 Md. Golam Mortuja (the informant), P. W. 2 Madhai karmakar, P. W. 3 Bablu Bauri, P. W. 4 Lakur @ Lagar Ghosh, P. W. 5 Smt. Genu Bauri (wife of deceased Netai Bauri), P. W. 6 Sourendra Nath Garai, P. W. 7 Samir Bauri, P. W. 8 Gouri Sankar Dey, P. W. 9 Sakti Pada Dey, P. W. 10 Md. Najimuddin, P. W. 11 Chandan Mukherjee, P. W. 12 Bimalendu Singha and P. W. 13 Dr. Ambarish Gupta (post mortem surgeon ). Out of the aforesaid 13 witnesses p. W. 1, P. W. 2, P. W. 3 and P. W. 7 are witnesses of occurrence. P. W. 4 was also a witness of occurrence according to prosecution case but, he did not support the prosecution case in his evidence and was declared a hostile witness. P. W. 5 came to place of occurrence hearing the hue and cry and saw her husband in injured condition and learnt names of assailants from her husband. P. W. 6 is a witness of seizure. P. W. 8, P. W. 9 and P. W. 13 are the medical officers out of which P. W. 8 is the medical officer of Suri hospital, who admitted injured Netai into the said hospital on 8. 5. 93 at 8. 55 P. M. P. W. 9 is the medical officer of Mohammad Bazar BPHC who treated the injured Netai Bauri first when the injured was produced before him and he instructed the patient party for shifting the injured to Suri hospital for better treatment. P. W. 13 is the autopsy surgeon who conducted the post mortem examination on the dead body of deceased Netai Bauri on 9. 5. 93.
( 4 ) P. W. 10 is a home guard who brought the dead body of Netai Bauri to Suri hospital morgue for post mortem examination. P. W. 11 was the then o. C. , Mohammad Bazar P. S. who received the written complaint (ext. 1) from p. W. 1 Md. Golam Mortuja and started Mohammad Bazar P. S. Case No. 28 dated 8. 5. 93 and filled up the formal FIR (ext. 8) and endorsed the case to Sub-Inspector of Police N. B. Chatterjee (no
