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2018 Supreme(Cal) 550
IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, Ravi Krishan Kapur, JJ.
Swapan Ghora – Appellant
Vs.
State of West Bengal – Respondent
C.R.A. No. 84 of 2013
Decided On : 04-06-2018
For the Appellant : Kallol Kumar Basu, Anindya Sundar Das, Debapriya Samanta, Avipsa Sarkar and Swarnali Ghosh
For the Respondent: Arun Kr. Maity, Ld. A.P.P. and Anjan Datta
The main legal point established in the judgment is the application of the fourth exception of section 300 of the Indian Penal Code to reduce the conviction from murder to culpable homicide not amounting to murder.
Headnote:
Indian Penal Code - Murder - Section 302 - Summary
Fact of the Case:
The case involved a dispute over landed property between two brothers, resulting in the murder of one brother by the other. The victim's wife witnessed the altercation and subsequent assault, leading to the victim's death.
Finding of the Court:
The court found that the appellant, in the heat of a passionate altercation, had assaulted the victim with a blunt weapon, resulting in the victim's death. The court concluded that the act fell within the fourth exception of section 300 of the Indian Penal Code and reduced the conviction from section 302 to section 304 Part I of the Indian Penal Code.
Issues: The key issues involved the reliability of witness testimony, the nature of the altercation between the brothers, and the intent behind the assault.
Ratio Decidendi: The court considered the evidence of the wife of the victim as truthful, assessed the enmity between the brothers, and concluded that the appellant's act was not intended to kill the victim in a cruel or unusual manner.
Final Decision: The court reduced the appellant's sentence to rigorous imprisonment for 10 years and a fine of Rs. 50,000, with the fine amount to be given to the victim's wife as compensation.
Joymalya Bagchi, J.
1. The appeal is directed against the judgment and order dated 26.11.2012 and 27.11.2012 passed by the learned Additional District & Sessions Judge, Fast Track Court, Kakdwip, South 24 Parganas in Sessions Case No. 96(11)/2008 (Sessions Trial No. 3(2)/2009) convicting the appellant for commission of offence punishable under section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for six months more. Prosecution case against the appellant and co-accused Arati Gjhora is to the effect that the appellant and the deceased Bilwapada Ghora were own brothers. There was enmity between them over landed property. On 31.7.2008 at about 9.30 p.m. while Bilwapada Ghora was returning home from 5 No. Hat, he met the appellant and one Harish Chandra Mondal at the culvert near Raghunathpur. At that time they were taking liquor. Harish Chandra Mondal requested the deceased to consume liquor with them but the deceased found some blue substance in his glass and refused to drink the liquor. Thereafter, he went to his residence and informed the incident to his wife Aduri Ghora, P.W. 1 and told her that he intended to inform such incident to the neighbours. At about 10.15 p.m. Aduri Ghora heard shouting and scuffling near her house. She rushed out and found that the appellant and his wife Arati were quarrelling with her husband. In the course of quarrel, the appellant hit her husband on the head with a bhojali. Thereafter the miscreants fled away. Her husband was taken to Kakdwip hospital where he was declared dead. P.W. 1 repored the incident to the police station resulting in registration of Kakdwip P.S. case No. 142/08 dated 1.8.2008 under section 302/34 IPC against the appellant and his wife, Arati Ghora.
2. In conclusion of investigation, charge sheet was filed against the appellant and co-accused Arati Ghora. The case was committed to the court of sessions and then was transferred to the court of Additional Sessions Judge, Fast Track Court, Kakdwip, South 24 Parganas for trial and disposal. Charges were framed under section 302/34 IPC and the appellant and Arati Ghora who pleaded not guilty and claimed to be tried.
3. In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication.
4. In conclusion of trial, the trial judge by judgment and order dated 26/27.11.2012 while convicting and sentencing the appellant, as aforesaid, acquitted the co-accused Arati Ghora of the charges levelled against her.
5. Mr. Basu, learned Counsel appearing with Mr. Das for the appellant argued that the evidence of P.W. 1, wife of the victim, is most unreliable. She is a post occurrence witness and could not have seen the incident of assault. Her version is wholly contradicted by P.W. 11, mother of the victim, who it is admitted was also present at the place of occurrence. It is further submitted that there is every possibility that the victim had suffered accidental injury due to dashing against the electric pole and the recovery of the weapon of offence i.e. bhojali is highly suspicious. Without prejudice to the aforesaid, it is argued that even if the version of the P.W. 1 is believed it appears that there was a heated altercation between the brothers over land dispute and in the heat of passion, the appellant had suddenly assaulted the victim with the blunt side of the bhojali. Hence, the conviction ought to be altered to section 304 of the Indian Penal Code.
6. On the other hand, Mr. Maity appearing with Mr. Datta for the State submitted that P.W. 1 is an eyewitness and her evidence is clear and convincing. She had seen the assault on the victim. The plea of accidental injury on the victim is most unlikely in view of the fact that no liquor was found in the stomach of the victim as per the post mortem report. It is also
