H.K.K. Singh, J.@mdashThis appeal is against the judgment and order dated 19-8-1995 passed by the learned Additional Sessions Judge, West Tripura, Agartala in Sessions Trial No. 146(W.T/ A) of 1993 thereby convicting the accused-appellant u/s 302 of I.P.C. and sentencing him to undergo life imprisonment.
2. On 1-5-1985 one Anukul Debnath came to Sidhai Police Station and lodged an oral ejahar stating that on the same day i.e. 1-5-85 at about 9,15/9''30 p.m., on hearing hue and cry coming from the direction of the house of one Baneshwar Choudhury, he rushed towards the direction and there he found Abinash Sarkar lying near the back side of the house of Baneshwar. He also found Rabindra Choudhury supporting the head of Abinash. Abinash Sarkar had severe bleeding injuries on his body. The informant also learnt from the persons who were present there that accused Niranjan Shil along with Biswanath Shil and others assaulted Abinash Sarkar. On the basis of the report (ejahar), Sidhai P.S. case No. 1 (5)/85 under Sections 326 34 of IPC was registered. Subsequently Abinash Sarkar succumbed to his injuries on 2-5-85. After investigation, the appellant and the aforementioned Biswanath Shil were charge sheeted for the offence u/s 302 read with Section 34 of IPC. Hence the trial.
3. After trial, the learned Sessions Judge acquitted the aforesaid Biswanath Shil of the charge levelled against him and convicted the appellant for the offence u/s 302 as noted above. The plea of the accused-appellant as gathered from his statement u/s 313 of Cr.P.C. and also from the trend of cross-examination is of total denial and that he has been falsely implicated in the case.
4. We have heard Mr. P.K. Biswas, the learned counsel appearing on behalf of the accused-appellant and Mr. H. Sarkar the learned Additional Public Prosecutor appearing on behalf of the respondent. Mr. Biswas challenged the judgment of the learned Sessions Judge on more than one ground and he has taken us through the judgment and also the evidence and other materials on record.
5. As per prosecution case, the occurrence took place on 1-5-85. After the occurrence victim Abinash Sarkar was immediately shifted to the hospital where he succumbed to his injuries on 2-5-85. The post-mortem examination was performed by one Dr. B.K. Paul, who died before the trial so, Dr. Pijush Kanti Das who had worked with Dr. B.K. Paul for about 27 years deposed before the court and proved the post-mortem examination report Ext.P/11). The injuries found by the Doctor on the body of the deceased are as follows:-
1. The incised looking wound over the left and posterior part of scalp 5" x 1" x 1/2" and 4" x 1" x 1/2" having the bone beneath cut off and stitch given.
2. One incised looking wound over the upper part of right shoulder extending from back to front aspect 4" x 1" x 1/2 stitch given.
3. One incised looking wound over the right side of back at the middle part 6" x 1" x 2" stitch given.
4. One lacerated cut injury over the palmir aspect of right hand extending from base of hand up to the root of the middle finger''4" x IVi" x 1".
6. According to the post-mortem report, injuries were caused by sharp cutting and moderately heavy weapon. The cause of death was "due to shock and haemorrhage resulting from the multiple injuries including brain injury which is fatal". Further the doctor who deposed on the basis of the post mortem report Ex. P/11 prepared by Dr. B.K. Paul also has given his independent opinion before the court that the injuries available in the post mortem report are not sufficient in the ordinary course of nature to cause death, but the injury on the head was imminently dangerous to cause death. In the course of the trial and also at the time of hearing of the present appeal the opinion of the doctor who performed the post mortem examination is not disputed. Thus, we have no hesitation to come to the conclusion that the finding of the learned Sessions Judge that the deceased Abinash Sarkar died on 2-5-85 as a consequence of the injuries caused on him was correct.
7. Regarding the occurrence, the prosecution has relied upon the oral evidence of eye-witnesses, corroborative evidence of other witnesses who rushed to the spot of crime just after the occurrence and oral dying declaration.
8. Shri Gautam Dhar P.W. No. 2 and Sankar Deb, P.W. 15 are the direct eye-witnesses of the occurrence. Sankar Deb (P.W. 15) and deceased Abinash Sarkar went to the house of Gautam Dhar (P.W. 2) at about 8/8.30 p.m. and they gossiped there for about an hour. Thereafter at about 9/9.30 p.m. P.W. 15 and deceased left the house of P.W. 2. P.W. 2 also escorted them up to his gate. Thereafter P.W. 2 remained at his gate. P.W. 15 and deceased proceeded towards south and had moved about 25/26 cubits from the gate of P.W. 2. P.W. 2 also saw accused Niranjan Shil going towards the same direction. Suddenly, Niranjan Shil chopped Abinash Sarkar With a dao near the shop of Sankar Choudhury. Abinash raised alarm. In the meantime, P.W. 2 also rushed towards the spot to intervene in the matter, but accused Niranjan Shil threatened him wielding the dao in his hand thus through fear P.W. 2 went back home. In the meantime, P.W. 15 also raised alarm when he saw the accused assaulting Abinash Sarkar with a dao. At that time accused Biswanath Shil also advanced towards the spot with a lathi in his hand saying "see the result of quarrel with us". Both P.W. 2 and P.W. 15 saw accused Niranjan Shil assaulting Abinash Sarkar with a dao. As P.W. 2 left through fear, P.W. 15 also left the place out of fear. Abinash Sarkar after receiving 2/3 injuries from the dao ran away towards south and fell down in front of the house of Baneswar Choudhury. Both P.Ws. 2 and 15 came back to the spot after 15/20 minutes and also on hearing the alarm and hue and cry many persons of the locality rushed there. Anukul Debnath (P.W. 1) who also rushed to the spot on hearing the hue and cry along with Ratan Dutta P.W. 13 went to the police station and lodged the ejahar orally which was reduced into writing by P.W. 17 Sujit Gupta who was Sub-Inspector of Police of Sidhai P. S. In the meantime, P.W. 6, Rabindra Sarkar, P.W. 7 Prembilash Sarkar and P.W. 9 Partha Sarkar carried the injured Abinash to'' Mohanpur Primary Health Centre and thereafter injured was shifted to G. B. Hospital. The informant P.W.I also mentioned in his ejahar that at about 7 p.m. of the date of occurrence Abinash Sarkar came to the shop of one Harakrishna Debnath and told the informant that on that day a settlement would be made between accused Niranjan Shil and others regarding the ''golmal'' which occurred two days before the occurrence.
9. Regarding the dying declaration, P.W. 11 Rabindra Choudhury, who is one of the persons who rushed to the spot after the occurrence after hearing the hue and cry raised by the victim and others, stated that he (P.W. 11) learnt from Abinash Sarkar that he was assaulted by accused Nira and Bishu. Rabindra Sarkar (P.W. 6) and Prembilash Sarkar (P.W. 7) who are brother/ cousin of the deceased stated that in presence of others they learnt from Abinash Sarkar that accused Nira and Bishu assaulted him. Again Partha Sarkar (P.W. 9) has also stated that he learnt from P.W. 11 that accused Nira and Bishu inflicted the injuries on Abinash Sarkar and P.W. 11 also stated that he learnt from Abinash Sarkar that he had been assaulted by accused Nira and Bishu.
10. The learned Additional Sessions Judge, relying upon the evidence of the eye-witnesses which is supported by the other evidence along with material exhibits like weapon of the offence (dao) found that accused Niranjan Shil is the guilty of the offence of murder. But accused Biswanath Shil was acquitted of the offence as noted above though the learned Sessions Judge did not rely upon the oral dying declaration and, rightly so.
11. Two accused, namely, Niranjan Shil and Biswanath Shil were charged for the offence u/s 302 read with Section 34, I.P.C. Accused Biswanath was acquitted and accused Niranjan Shil was convicted u/s 302 simpliciter. Mr. P. K. Biswas, the learned counsel for the appellant has strongly contended that in absence of a specific charge for the offence u/s 302, I.P.C. against accused Niranjan Shil no conviction can be made. Mr. Biswas has also submitted that charge framed against accused for offence u/s 302 read with Section 34 has not been altered into one u/s 302 simpliciter and as such conviction cannot lie. Mr. Biswas has relied upon decision of the Apex Court in the case of Lakhan Mahto v. State of Bihar reported in
12. In the aforesaid case of
13. In the next case, relied upon by the learned counsel for the appellant,
14. Section 464, Cr.P.C. provides that no finding, sentence or order shall be deemed to be invalid on the ground of error, omission or irregularity in the charge, unless, a failure of justice has in fact been occasioned thereby. Thus in the light of the provision of Section 464, Cr.P.C. the present case has to be decided.
15. In the case of
16. In the case of
17. In the case of
18. Again a Division Bench of this Court in the case of
19. From the above decisions it is to be seen if the conviction of the accused for the offence u/s 302 simpliciter may be maintained. In our case, the direct evidence of P.W. 2 and P.W. 15 are found supported by the corroborative medical evidence, inquest report and recovery of the weapon of the offence and as per evidence it is proved that accused Niranjan Shil assaulted the deceased with a dao in his hand. The learned Sessions Judge acquitted accused Biswanath Shil and no appeal has been filed by the State against the acquittal, thus we need not go further in respect of accused Biswanath Shil and the learned Sessions Judge specifically mentioned in examination u/s 313, Cr.P.C. about the dao blows given by the accused Niranjan Shil on the person of deceased. Thus, accused Niranjan Shil well aware of the evidence against him. Hence, we are of the opinion that no prejudice would be caused if the accused is convicted u/s 302 simpliciter even if no charge has been framed for the offence u/s 302, IPC.
20. The next point raised by Mr. P. K, Biswas is that the FIR is anti-timed and anti-dated and the learned counsel relied upon the decision of the Apex Court in the case of
21. We have considered the matter and we are of the opinion that the submissions of the learned counsel for the appellant has no substance. Everything happened in a quick succession and we also find the F.I.R. was lodged promptly and investigation commenced. Non-mentioning of the case number in inquest report or in the post mortem report, in the circumstances of the case is only a minor omission which cannot go to the root of the case.
22. Another point raised by Mr. Biswas, is that in the post mortem examination stomach was found full of rice and no abnormal smell was there. The learned counsel has submitted that in such a case the occurrence as narrated by the prosecution is not probable and he relied upon the Modi''s Medical Jurisprudence and Toxicology, Twenty-first Edition at page 185. The learned Counsel has submitted that as the occurrence took place at 9/9.30 p.m. and as there is no evidence that deceased took meal within about 2/ 3 hours before the occurrence, thus, the entire prosecution'' story as narrated by P.W. 2 and P.W. 15 is not believable. The learned counsel has also relied upon the decision of the Supreme Court in the case of Meharaj Singh (supra) in this regard.
23. In the present case at hand, according to P.Ws. 2 and 15, the deceased was all along with them from 7/7.30 p.m. onwards i.e. about 2l2Vi hours. Though there is no direct evidence from the mouth of the witnesses that they took meal while they were gossiping, it is also equally possible that they might have taken food. Again in Modi''s Medical Jurisprudence at page 185 inferred to by Mr. Biswas it is found, "the rate of emptying of stomach varies in healthy persons. The emptying of stomach depends on (i) consistency of food, (ii) motility of stomach, (iii) osmotic pressure of stomach entents, (iv) quantity of food in duodenum, (v) surroundings in which food is taken, (vi) emotional factors and (vii) residual variations. It varies in man from 2.5-6 hours. A meal containing carbohydrates generally leaves the stomach early and one containing proteins later. The fatty food delays emptying time while liquids leave the stomach immediately after ingestion. Sometimes the emptying of stomach remains in abeyance for a long time in states of profound shock and come. Food has been seen in the stomach remaining undigested in persons who received severe head injuries soon after their meal and died within twelve to twenty-four hours afterwards. In one case the food consisting chiefly of rice and dal (pulse) remained in the stomach for about forty hours without undergoing digestion. It must also be remembered that the process of digestion in normal, healthy persons may continue for a time after death. The presence of tablets or parts of capsules may be significant."
24. Thus, even if the deceased took his evening meal before he met any of the witnesses the post mortem report does not go against the prosecution story. Both the cases relied upon by the learned counsel for the appellant will not be of any relevance with the present case.
25. The next point raised by the learned Counsel for the appellant is that in the present case many important witnesses, namely, Harakrishna Debnath, Sankar Choudhury, Sanjib Dey and Baneswar Choudhury were withheld by the prosecution. To this learned Public Prosecutor has submitted that Sankar Choudhury and Baneswar Choudhury were not available at their respective house and shop and it was further submitted that it is not necessary to examine all the witnesses for the sake of avoiding repetition. It is true that important witnesses should be examined if available but sometimes prosecution may not examine all the witnesses just to avoid repetition of narration of the same fact. If evidence available on record are sufficient to prove the case beyond any doubt then non-examination of one or some of the witnesses may not result in discarding the whole prosecution story which is otherwise found proved from available materials on record.
26. For the aforesaid reasons and conclusion we are of the view that the prosecution has been able to prove the case that the accused Niranjan Shil assaulted the deceased on the date, time and place with dao causing multiple injuries on the body of the deceased Abinash Sarkar and accordingly we affirm the conviction and sentence as recorded by the learned Additional Sessions Judge, West Tripura, Agartala.
27. The appeal fails and accordingly the same is dismissed.
