2022 Supreme(Cal) 479

IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, Ananya Bandyopadhyay, JJ.
State Of West Bengal And Others - Appellant
Versus
Sujit Dhali And Others - Respondent
Death Reference No. 1 of 2017 With C.R.A. No. 97 of 2017 With C.R.A. No. 117 of 2017 With C.R.A. No. 140 of 2017
Decided On : 02-08-2022

Medical evidence on record does not wholly rule out the ocular version of eye-witnesses so as to render the prosecution case improbable.

Headnote:

JUDGMENT Joymalya Bagchi, J. - The death reference and the criminal appeals have arisen out of the impugned judgment and order dated 08.12.2016, 09.12.2016 and 12.12.2016 passed by learned Additional Sessions Judge, 7th Court, Barasat, North 24 Parganas in Session Trial No.04(01) 2013 arising out of Session case No.32(12) 2012 convicting the appellants Provash Dhali, Sujit Dhali and Samir Mondal for the commission of offences punishable under sections 449, 120B and 302 IPC in additional to conviction of Provash Dhali under section 25 of the Arms Act and sentencing them to suffer rigorous imprisonment for 10 years and pay a fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for one year for the offence punishable under section 449 IPC, rigorous imprisonment for life and pay a fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for one year for the offence punishable under section 120B IPC, sentence of death as well as fine of Rs.50,000/- each, in default, to suffer rigorous imprisonment for three years for the offence punishable under section 302 IPC and to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for one year for the offence punishable under section 25 of the Arms Act so far as Provash Dhali is concerned. Fine amount, if realised, was directed to be awarded to the minor sons of the deceased Avijit Biswas and Biswajit Biswas, P.Ws. 2 and 3 respectively.

Fact of the Case:

Prosecution case, as alleged against the appellants is to the effect on 10.04.2012 Benoy Biswas along with his wife Sheuli Biswas and two minor children Avijit Biswas and Biswajit Biswas had retired to bed after dinner. Amrita Biswas and Kagoti Biswas, parents of Benoy Biswas were also asleep in an adjoining room. Around 10.30 p.m. the appellants and others entered the room and started assaulting Benoy. Sheuli Biswas (P.W. 1) tried to save her husband. She requested them not to kill her husband. Provash Dhali fired at her right hand. Her husband begged for mercy. Provash Dhali fired at the chest of Benoy Biswas. Hearing the noise, Benoy's sons woke up. His parents also came to the spot. Provash Dhali threw down Kagoti Biswas, mother of Benoy, and fired on her cheek. Kagoti suffered injury and died at the spot. Provash Dhali also threw down Amrita, father of Benoy, and fired at his cheek. Thereafter, the appellants dragged Benoy towards the field. Sheuli and her sons followed and saw the appellants mercilessly stab Benoy and fire at him. Sheuli and her sons fled from the spot and went to Adivasi Para. On the next day Sheuli and her father-in-law were removed to hospital. Her father- in-law was declared died at the hospital. Sheuli made statement before A.S.I. Biswajit Patra (P.W. 8), a police officer attached to Barasat Police Station. Her statement was reduced into writing and treated as FIR in the case. She was shifted to R.G Kar Medical College and Hospital and was finally discharged on 20.04.2012.

Finding of the Court:

There are overwhelming evidence on record that the appellants being variously armed assembled together and entered the room of Benoy Biswas in the night of 10.04.2012. Benoy was assaulted and dragged out to a nearby field and murdered. His wife, P.W. 1 was also assaulted. His parents, namely, Amrita and Kagoti tried to intervene. They were violently thrown down on the ground and suffered head injuries and fracture of neck. Miscreants also fired at the place of occurrence. These facts have been proved beyond doubt which clearly establishes the role of the appellants in the murder of Benoy and his parents Amrita and Kagoti.

Issues: Whether charge is defective: Mr. Ganguly for Samir Mondal and Sujit Dhali argued that place of occurrence in the charge has been described as house of Sheuli Biswas. Body of Benoy Biswas was found on the land of Krishnapada Ghosh. Hence, charge is defective.

Ratio Decidendi: I find little substance in the argument. Evidence on record shows the appellants had barged into the room of Benoy and had assaulted him and fired at his chest. Thereafter, they dragged him to the field and stabbed him to death. Appellants were fully aware of the prosecution case regarding the manner and circumstances in which the offence was committed. Reference to the room of Sheuli Biswas in the charge, therefore, has in no way misdirected them in their defence or occasioned failure of justice.

Final Decision: All the appellants shall suffer rigorous imprisonment for 10 years and pay a fine of Rs. 10,000/- each, in default, to suffer rigorous imprisonment for one year for the offence punishable under section 449 IPC. Appellants Sujit Dhali and Samir Mondal shall suffer rigorous imprisonment for life and pay a fine of Rs. 50,000/- each, in default, to suffer rigorous imprisonment for three years for the offence punishable under section 302 IPC read with section 34 IPC. Appellant Provash Dhali shall suffer rigorous imprisonment for life without remission for 30 years and pay a fine of Rs. 50,000/- for the offence punishable under section 302 IPC read with section 34 IPC. Sentenced imposed on Provash Dhali for the offence punishable under section 25 of the Arms Act shall remain unaltered. All the sentences to run concurrently.