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CASE NO.: Appeal (crl.)  1101 of 2006

PETITIONER: Sukumar Roy                                              

RESPONDENT: State of West Bengal                             

DATE OF JUDGMENT: 31/10/2006

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of SLP(Criminal) No. 2822/2006)

MARKANDEY KATJU, J.

       Leave granted.

       This appeal has been filed against the impugned judgment  of a Division Bench of Calcutta High Court dated 22.12.2005  in Criminal Appeal No. 5 of 1988 by which the conviction of  the accused, Sukumar Roy under Section 304 Part I read with  Section 34 IPC, has been upheld.

       Heard learned counsel for the parties and perused the  record.

       The crux of the prosecution case is that on 11.8.1984 at  about 12 o’clock the deceased Prafulla Nayak was collecting  seedling from his land at mouza Amtala, the accused Phani  Bhusan Roy, his son accused Sukumar Roy, his wife Urmila  Roy alias Tobi Roy and Tarani Roy, the wife of his elder  brother entered into the land with lathi, bhali etc., in their  hands and an altercation ensued between the parties when  Phani told the deceased that he purchased the land and as such  he would cultivate the land.  In course of the altercation the  accused Phani struck Prafulla on his head with lathi and the  accused Sukumar hit Prafulla with a bhali which pierced the  abdomen of  Prafulla.  The local people on hearing hue and cry  rushed to the place of occurrence and in the meantime the  accused persons took to their heels.  The informant with the  help of villagers took the deceased to Nandigram P.H.C. where  he was declared dead.  The I.O. on the basis of F.I.R. lodged  by Pashupati Nayak took up the investigation, and he visited  Nandigram P.H.C. where he held an inquest of the dead body  of Pralfulla (vide Exhibit 4).  The I.O. also visited the spot and  seized alamats from the place of occurrence (vide Exhibits 2  and 6) and examined the witnesses.  He also seized one tangi  with stain of mud, one blood stained bhali from the house of  accused Bhanu Das (Exhibits 3 and 7) and prepared sketch  map (Exhibit 4).  The I.O. also sent the napkin with which the  body of the deceased, Prafulla was wrapped along with blood  stained weapons to the forensic science laboratory for chemical  examination.   The I.O. (P.W.13) Sadhan Chandra Saha also  sent the dead body to Tamluk hospital through Constable No.  33, Nimai Chandra Biswas for post mortem examination. Since  S.I. Sadhan Chandra Saha was transferred from the station the

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next man S.I. Gour Gopal Roy (P.W.14) took up the  investigation and in course of examination he examined Sankar  Bhunia, collected post mortem report and the report of the  chemical examiner and ultimately submitted charge-sheet  against the accused persons under Sections 147, 148, 149,  447/304 IPC.  The accused Sukumar Roy was charged under  Section 304 Part I read with Section 34 IPC and he pleaded not  guilty to the charge.   

The defence case as appearing from the trend of cross- examination as also his examination under Section 313 Cr.P.C.  is that he is innocent and land bearing Dag No. 743 at mouza  Amtala was purchased by him from Prafulla (deceased) and in  spite of warning the deceased who was uprooting seedling  from the said land did not leave the place and as a result an  altercation ensued and in the course of that altercation he  attacked Prafulla with a bhali (ballam) and accidentally it  pierced the abdomen of Prafulla.  It is otherwise claimed by the  appellant, Sukumar that he did this in exercise of his right of  private defence to protect his property and body.  However,  during the trial the learned trial court found sufficient evidence  against the appellant and he was pleased to convict him under  Section 304 Part I read with Section 34 IPC and sentenced him  to suffer rigorous imprisonment for ten years.  The High Court  upheld this conviction, and hence this appeal.  

Admittedly, the incident occurred on plot No. 743 at  mouza Amtala.  The facts are that the that accused Sukumar  and his brother purchased a portion of plot No. 743 from the  deceased Prafulla.  However, the land was not demarcated.  It  is claimed by the accused that he purchased the western side of  plot No. 743 whereas the deceased Prafulla claimed that the  appellant and the deceased were co-sharers of plot No. 743  where the incident occurred.  It is the prosecution case that the  deceased Prafulla was assaulted by the appellant, Sukumar  with a bhali (ballam) which pierced his abdomen and as a  result his intestine and omentum came out through the wound.   The incident of assault upon the deceased on that particular  date i.e. 11.8.1984 was seen by P.W.1, Pasupati Nayak, P.W. 2  Nidhiram Nayak, both being cousin brothers of the deceased,  P.W.3, Bhudar Chandra Das, neighobour, P.W.4, Sankar  Kumar Bhunia, neighbour, P.W. 5, and Surapati Jana, labour  engaged by Prafulla.  All of them in chorus voice stated that it  was the appellant, Sukumar, who hit the deceased Prafulla with  bhali which pierced his abdomen and as a result he died.  The  testimonies of these witnesses as to the cause of death of the  deceased find corroboration from Dr. Saroj Ranjan Bhowmick  (P.W.9), who held the post mortem examination of the  deceased. The doctor (P.W.9) on dissection of the body of the  deceased found the following injuries:

(i)     One penetrating wound 2" x >"x 4" deep over  the right side of the abdomen at the level of  umbilicus about 2" lateral.  Intestine and  omentum coming out through the wound.  On  dissection the wound was seen penetrating to  the intestine and injuring abdominal scrota.   The whole peritoneal cavity was full of blood  about 2/ 2-1/2 lbs.          (ii)    One incised wound 2" x =" x <" muscle deep  over the thinner eminence right palm.            

(iii)   One incised wound over the vault of the scalp  right side 2 =" with bone scratch mark.

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       The doctor opined that the death was due to shock and  haemorrhage as a result of abdominal injury which was anti  mortem and homicidal in nature.  He however opined that  injury No. 1 & 2 can be caused by sharp cutting weapon and  injury No. 3 on the vault of the scalp can be caused by lathi or  blunt substance.

       From the facts it is evident that the deceased Prafulla died  an unnatural death which was homicidal due to injuries which  were anti mortem in nature and it is the appellant, Sukumar  who inflicted injury upon the body of the deceased with bhali  (ballam) causing his death.

There were five accused in the case of which three were  acquitted and two convicted.  One of those convicted viz.  Phani Bhushan Roy is dead and hence this appeal is now only  on behalf of the accused, Sukumar Roy.

From the facts narrated above, it is evident that there is no  dispute that the deceased Prafulla was assaulted by the  appellant Sukumar Roy with a bhali (ballam) which pierced the  abdomen of Prafulla as a result of which his intestine and  omentum came out through the wound.

The medical officer who held the post mortem on the  deceased in his examination has stated as under:

"(a)    One penetrating wound 2" x >"x 4" deep  over the right side of the abdomen at the level  of umbilicus about 2" lateral.  Intestine and  omentum coming out through the wound.  On  dissection the wound was seen penetrating to  the intestine and injuring abdominal scrota.   The whole peritoneal cavity was full of blood  about 2/ 2-1/2 lbs.          (b)     One incised wound 2" x =" x <" muscle  deep over the thinner eminence right palm.       

(c)     One incised wound over the vault of the  scalp right side 2 =" with bone scratch mark.

(d)     Liver abscess and pus was coming out  and 8 ounces of partly digested rice and  vegetable in the stomach was found.

Death was, in my opinion, due to shock and haemorrhage  as a result of abdominal injury described above, which are ante  mortem and homicidal in nature.  Injury No. 1 can be caused  by bhali or ballam.  Injury No. 2 can be caused by sharp  cutting weapon.  Incised looking wound on the vault of the  scalp is possible with lathi or blunt substance".     

From the above evidence it is evident that the deceased  Prafulla died due to the wound in his abdomen which was 4  inches deep.  In our opinion this shows the intention of the  assailant to kill or to cause such bodily injury as is likely to  cause death.  There is no reason to disbelieve the evidence of  the prosecution witnesses that it was the appellant Sukumar  who caused the injury on Prafulla, the deceased.  The  prosecution evidence of the eye-witnesses is corroborated by

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the medical evidence.

Learned counsel for the appellant submitted that it was a  case of self-defence because the appellant had purchased the  land in question from the deceased who had entered into his  land in spite of warning and as a result an altercation ensued.   He contended that the deceased and his men assaulted the  accused person and the injury on Prafulla was an accidental  one in the scuffle which followed.  We do not agree.

From the evidence it is clear that the deceased and his  men were  unarmed and there was no provocation on their part.   It also seems that the deceased and the appellant are co-sharer  in the land being plot No. 743.  There is no evidence on record  to show that the deceased and his men assaulted the appellant  and his family members.  Hence, in our opinion the conviction  under Section 304 Part I read with Section 34 IPC was fully  justified.

Learned counsel for the appellant contended that there  were unexplained injuries on Urmila and Tarani.  It is well  settled that minor unexplained injuries will not help the case of  the accused.  Moreover, the nature of alleged injuries on  Urmila and Tarani has neither been stated by the accused  persons nor have any injury reports of any doctor been  produced, and no doctor has been examined as a witness in  support of such injuries.

Thus, there is no force in this appeal.  The appeal is  accordingly dismissed.