JUDGMENT
Sankar Prasad Mitra, J.
1. This appeal has been directed against the judgment dated 12th November, 1987 passed by the Additional Sessions Judge, 2nd Court, Midnapur under Sessions Trial Case No. VIII of May 1986. By the said judgment the appellants were convicted and sentenced under Section 304 Part 1/34 of IPC to suffer rigorous imprisonment for ten years with a direction to set off the period of detention in jail custody against the period of sentence. However, by the said judgment accused Urmila Roy alias Tobi Roy, Tarani Roy and Bhanu Das were acquitted. Moreover during the pendency of this appeal the appellant Phani Bhusan Roy expired and as such the appeal has been abated against him. Therefore the appellant before us at present is Sukumar Roy (convict).
2. On the basis of FIR lodged by Pashupati Nayek, P.W. 1. The formal FIR was drawn up by P.W. 13, S.I. Sadhan Chandra Saha, who registered Nandigram P.S. Case No. 2 dated 11.08.1984 vide (Ext.1) series and took up the investigation of the case. The crux of the prosecution case is that on 11.08.1984 at about 12 O’clock the victim Prafulla Nayek, when he 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 victim that he purchased the land and as such he would cultivate the land. In course of altercation the accused Phani struck Prafulla on his head with lathi and 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 their heels. The informant with the help of villagers took the victim to Nandigram PHC where he was declared dead. The I.O. on the basis of FIR lodged by Pashupati Nayek took up investigation and he visited Nandigram. PHC where he held inquest of the deadbody of Prafulla vide (Ext. 4). The I.O. also visited spot and seized alamats from the place of occurrence vide (Exts. 2 and 6), examined witnesses. He also seized one tangi with stain of mud, one blood-stained bhali from the house of accused Bhanu Das, (Exts. 3 and 7), prepared sketch map, (Ext. 5) and inquest report (Ext. 4). The I.O. also sent the napkin with which the body of the victim, 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 deadbody to Tamluk Hospital through Constable No. 33, Nimai Chandra Biswas for P.M. examination. Since the S.I. Sadhan Chandra Saha was transferred form the station the next man S. I. Gour Gopal Roy, P.W. 14 took up the investigation and in course of examination he examined Sankar Bhunia, collected P. M. report and the report of the chemical examiner and ultimately submitted chargesheet against the accused persons under Sections 147, 148, 149, 447/304 of IPC. The accused Sukumar Roy was charged under Section 304 Part 1/34 of IPC and he pleaded not guilt to the charge. The defence case as appearing from the trend of cross-examination as also his examination under Section 313 of Cr. PC is that he is innocent and land bearing Dag No. 743 at mouza Amtala was purchased by him from Prarulla (victim) and in spite of warning the victim who was uprooting seedling from the said land did not leave the place and as a result altercation ensued and in the course of 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/34 of IPC and sentenced him to suffer rigorous imprisonment for ten years.
3. Admittedly, the incident occurred on plot No. 743 at mouza Amtala. It is admittedly clear that the accused Sukumar and his brother purchased a portion of plot No. 743 from the victim 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 victim Prafulla claimed that he sold eastern portion of plot No. 743. However, the deed of sale is not before us. Therefore, at best it can be said that the appellant and the victim were co-sharers of plot No. 743 where the incident occurred. It is the prosecution case that the victim Prafulla was assaulted by the appellant, Sukumar with a bhali (ballam) which pierced the abdomen and as a result intestine and omentum came out through the wound. The incident of assault upon the victim on that particular date i.e. on 11.08.1984 was seen by P.W. 1, Pasupati Nayek, P. W. 2, Nidhiram Nayek both being cousin brother of the victim, P. W. 3, Bhudar Chandra Das, neighbour, P. W. 4, Sankar Kumar Bhunia, neighbour, P. W. 5, Surapati Jana, labour engaged by Prafulla and P. W. 8, Saktipada Jana, labour also engaged by Prafulla. All of them in chorus voice confirmed that it is the appellant, Sukumar who hit the victim 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 victim find corroboration from Dr. Saroj Ranjan Bhowmick, P.W.9 who held the P.M. examination of the victim. P. W. 9 on dissection of the body of the victim found the following injuries :
(i) One penetrating wound 2″ x 3/4 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 the abdominal scrota. The whole peritoneal cavity was full of blood about 2/2 1/2 lbs.
(ii) One incised wound 2″ x 1/2″ x 3/4″ muscle deep over the thenar eminence right palm.
(iii) One incised wound over the vault of the scalp right side 21/2″ x 1/2″ with bone scratch mark.
4. The doctor opined that the death was due to shock and haemorrhage as a result of abdominal injury which are anti-mortem and homicidal in nature. He however opined that injury Nos. 1 and 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.
5. Therefore, the victim Prafulla died unnatural death which was homicidal and anti-mortem in nature and it is the appellant, Sukumar who inflicted injury upon the body of the victim with bhali (ballam) causing his death.
6. Sk. Anawar Ali, learned Advocate appearing on behalf of the appellant drawing our attention to the deposition of witnesses as also Section 80 of IPC submitted that in view of doctor’s evidence injury No. 1 and injury No. 2 were caused simultaneously. According to him in course of mutual pulling of bhali, the bhali entered into the abdomen of Prafulla accidentally and as such the cause of death of the victim was accidental and, therefore, the appellant is entitled to get an order of acquittal.
7. Mr. Subir Ganguly, learned Additional Public Prosecutor drawn our attention to Section 80 of IPC as also the deposition of witnesses, submitted that the appellant cannot take advantage of that section because the testimonies of witnesses do not show that there was pulling and pushing of bhali which accidentally pierced the abdomen of the victim. That apart, the facts of the case, according to him do not justify the applicability of Section 80 of IPC in this case. It is true that Section 80 can be a shelter to an offender if he can prove that (i) the act in question was without any criminal intention or knowledge; (ii) that the act was being done in lawful manner by lawful means, and (iii) the act was being done with proper care and caution. In this particular it does not appear that the activities of the appellant fulfilled the essential ingredients of Section 80 of IPC. That apart the testimonies of prosecution witnesses do not support his defence in this regard.
8. In these circumstances, considering the entire evidence on record, we are of the view, that Section 80 of IPC is not applicable in this case and the appellant cannot take advantage of that section by any means whatsoever.
9. Sk. Anawar Ali, learned Advocate again drawing our attention to a decision in the case of Laxmi Singh and Ors. v. State of Bihar , submitted that the witnesses examined in this case are all interested witnesses and that the prosecution could not prove the injury sustained by the accused Urmila alias Tobi and Tarani, although, they were examined by the doctor and the I.O., P.W. 13 did not offer any explanation as to why the doctor was not examined and why the injury report was not produced during the course of trial. In these circumstances, it is submitted by him that the prosecution’s case should be viewed with suspicion because they have intentionally suppressed the truth. It is, therefore, urged by him that considering the facts and circumstances of this case, the appellant should be acquitted.
10. Learned Additional P.P., on the other hand, referring the deposition of witnesses and documents exhibited in this case submitted before us that the said ruling is not applicable in this case because there is nothing to show that the prosecution witnesses are interested witnesses and that apart the injured accused Urmila alias Tobi and Tarani were acquitted by the Trial Court for want of evidence against them.
11. We have gone through the evidence on record as also the decision cited by the learned Advocate for the appellant. It is true that Urmila alias Tobi and Tarani were injured but how they sustained injury is not clear for want of evidence. Moreover, Urmila and Tarani were acquitted by the Trial Court for want of evidence. That apart, there is nothing to show that the witnesses for the prosecution are all interested witnesses. There is nothing to show that the witnesses examined by the prosecution are the enemies of the appellant. On the contrary, in view of the pleadings ‘the right of private defence’ taken by the appellant admitting the incident of assault, we cannot place much reliance upon the decision cited by the learned Advocate for the appellant. In the said case the facts and circumstances are different which has no manner of application in the present case. Therefore, the contention of the learned Advocate in the instant case is not acceptable.
12. Mr. Ali further drawn our attention to the deposition of witnesses and submitted that admittedly the appellant had purchased 72/3 decimals of land at mouza Amtala from the victim Prafulla and the victim who entered into his land in spite of warning did not leave the place and as a result altercation ensured and as the victim and his men assaulted the accused persons, the appellant pocked bhali into the abdomen of the victim and in course of mutual pulling the bhali it entered into the abdomen of the victim, Prafulla accidentally causing further wound on the right palm of the victim. Mr. Ali drawing our attention to Section 97 of IPC submitted that the injuries were caused while the appellant was exercising his ‘right of private defence of his body and property and, therefore, considering the decision in the case of Yogendra Morarji v. State of Gujrat the appellant should have been convicted under Section 304 Part II of IPC instead of 304 Part I of IPC. It is therefore submitted by him that in the circumstances the sentence imposed upon the appellant should be reduced.
13. Mr. Ganguly, learned Additional P.P. drawn our attention to the deposition of witnesses and submitted that there is no evidence that the victim and his men assaulted Urmila, Tarani and appellant, Sukumar. On the contrary the evidence on record will show that they were unarmed and there was no provocation on their part. So what prompted the appellant to hit Prafulla with bhali which pierced his abdomen and plam and the death was the ultimate result of the incident. It is therefore submitted by him that the facts and circumstances of the case as referred by the learned Advocate for the appellant are altogether different which have no manner of application in the present case. It is further submitted by him that the evidence on record and the attending circumstances of the case fully justify the conviction of the appellant under Section 304 Part 1/34 of IPC and, therefore, there is no need to set aside the order of conviction and reduce the sentence as urged by the learned Advocate for the appellant.
14. We have carefully considered the submissions made on behalf of the respective parties, the materials on record and also the decision cited by the learned Advocate. It is evidently clear that the victim and his men were unarmed and there was no provocation on their part. It is also clear that the victim and the appellant are co-sharer of the land being plot No. 743. There is no evidence on record to show that the victim and his men assaulted the accused appellant and his family members. So what prompted the appellant to take such serious steps which took away the life of the victim, Prafulla. The decision cited by the learned Advocate for the appellant shows that there was provocation as a result the accused opened fire, and the Court after scrutinizing the evidence on record set aside the order of conviction under Section 300 of IPC and found the appellant guilty under Section 304 Part II of IPC. The facts and circumstances of that case are different which has no manner of application in the instant case. The evidence on record and the attending circumstances of the case clearly show that the death of the victim was not accidental and the appellant without any provocation from the victim who was unarmed assaulted him with bhali piercing his abdomen and cutting his right palm which cannot be under any circumstances considered that he was doing it in exercise of the right of private defence of his property and body. On the contrary, the use of bhali (ballam) by the appellant which pierced the abdomen of the victim clearly shows that the appellant had intention to cause death or cause such bodily injury as was likely to cause death of the victim.
15. Therefore, the conviction under Section 304 Part I/34 of IPC, in our opinion, was justified and it does not call for any interference by this Court.
16. We, therefore, find no merit in the appeal and as such the appeal is dismissed. The appellant, Sukumar Roy who is on bail shall surrender before the Additional Sessions Judge, 2nd Court at Midnapore within fortnight from this day to serve the sentence. In default the learned Judge shall issue warrant of arrest against the appellant, Sukumar Roy.
17. Let a copy of this judgment be sent to learned Additional Sessions Judge, 2nd Court, Midnapore, for information and taking necessary action.
Amit Talukdar, J.
18. I agree.