Sarojit Kullu v. The State
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLETE JURISDICTION (CIRCUIT BENCH AT PORT BLAIR) PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH CRA 001 of 2020 Sarojit Kullu -vs.- The State For the Appellant :
Mr. D. Ilango For the State :
Mr. Sumit Karmakar Heard on :
22.06.2022 & 27.06.2022 Judgment on :
23.08.2022 Tirthankar Ghosh, J:- The present appeal has been preferred against the judgment and order of conviction and sentence dated 16.01.2020 and 17.01.2020 passed by the learned Additional Sessions Judge, Andaman & Nicobar Island, Port Blair, in connection with the Sessions Case No.08 of 2014 (corresponding to Sessions Trial No.01/2014) arising out of Havelock P.S. case no. 11/13 dated 16.07.13, thereby convicting the appellant for commission of offence under Section 308 of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for
four years and fine of Rs.10,000/- in default to suffer further Simple Imprisonment for six months.
The present case was registered with Havelock Police Stations on the basis of a statement of Shri Subash Mondal recorded by J.K.K. Naidu, Head Constable of the Havelock Police Station. The allegation made in the said statement was as follows:
The complainant was residing with his wife and two children at his house situated at the back of a garage/repairing shop opposite to Pelicon Resort and used to ply fishing donghi of one Bipul Mondal @ Bithi. On 16.07.13 in the evening at about 06.30 p.m. he had been to his brother-inlaw's pan shop when his brother-in-law told him Sarojit Kullu was attempting to drink beer in front of his shop and as such he was told to go to house and drink beer and not to do the same in front of the shop. At that time Sarojit Kullu snubbed Surjo Mohan Das, brother-in-law of the complainant and also hurled filthy language while returning to his house.
The complainant along with his brother-in-law went to the house of Sarojit Kullu to complain regarding his behaviour to his father and told him that in future if he behaves in such manner in that case they would lodge a complaint with the police station. At that time Sarojit Kullu came out from his house at about 19.10 hours with a sharp dah and in a loud voice threatened the complainant that such complaint could be lodged in case he is alive and thereafter attacked Surjo Mohan Das with the dah causing severe injury/wound on his neck.
complainant immediately took his brother-in-law in an auto-rickshaw to Primary Health Centre at Havelock. It has been alleged that after committing the ghastly incident the accused Sarojit Kullu escaped from the spot with the dah. The complainant requested the police authorities to take action as the accused intended to kill his brother-in-law Surjo Mohan Das. On the basis of the aforesaid statement Havelock Police Station case no.11/13 dated 16.07.13 was registered for investigation and on completion of investigation charge-sheet was submitted under Section 307 of the Indian Penal Code against the accused Sarojit Kullu. After supply of the documents under Section 207 of the Code of Criminal Procedure the case was committed to the Court of Sessions and finally the case was transferred to the learned Additional District and Sessions Judge, Andaman & Nicobar Island at Port Blair, wherein charge was framed against the present appellant under Section 307 of the Indian Penal Code.
The prosecution in order to prove its case relied upon PW1 Surjo Mohan Das, injured/victim;
PW2, Subash Mondal, complainant;
PW3, P.
Chitambaram, employee of Revenue Department and signatory to the Seizure List; PW4, Govinda Baroi, vegetable seller and an acquaintance of the injured; PW5, Maheshwar Paik, vegetable seller and seizure list witness; PW6, Ganesh Mazumdar, a resident of Havelock; PW7, Sushil Biswas, resident of Havelock; PW8, Stalin NS, Police Officer who recorded the statement of the complainant;
PW9, Dr. Lustin, Doctor/Medical Officer of the Primary Health Centre and PW10, Mithun Kirtania, Investigating Officer of the case. PW1, Surjo Mohan Das in his deposition before the Court stated that he had a small betel shop by the side of fish market and on 16.07.13 at about 06.30 pm the occurrence took place. At that time he was in his betel shop when Sarojit Kullu (accused/appellant) along with his brother-in-law Sushil Biswas came to his shop. Both of them asked to prepare betel leaf, when the accused opened a bottle of beer and started drinking in front of his shop, the witness requested him not to do the same as a result he abused him in filthy languages and went away from that place towards their own house.
Thereafter, Subash Mondal, his brother-in-law came to his shop when he reiterated the entire matter and as per his instruction both of them went to the house of the accused for narrating the incident to his father. As soon as they started narrating the incident to his father the accused started abusing them with filthy languages, however, his father did not state anything and at that time the witness and his brother-in-law stated that if such incident is repeated then they would report the matter to police station. On hearing the same the accused became furious and with the aid of a dao struck at the neck of the witness, resulting in bleeding injury and the witness became senseless. The witness also stated that he came to know that police came to the hospital to record his statement but he was not in a position to give such statement.
PW2, Subash Mondal deposed that he is a fisherman by profession and introduced himself as brother-in-law of the injured/PW1. He deposed before the Court that on 16.07.13 he met his brother-in-law in his house at 6.30 pm who informed him that the accused consumed beer infront of his shop and he raised protest when the accused abused him. Both of them went to the house of the accused for reporting the matter to his father and as soon as they started narrating the incident the accused appeared and initiated altercation with his brother-in-law.
At this point of time PW1 stated to the accused that if he repeated such incident he will have no other alternative except to report to the police station when the accused threatened, by saying that the incident can be reported to the police Station only if he is alive and immediately assaulted PW1 on his neck with the aid of a dao causing bleeding injury. As a result of such injury PW1 fell down on the ground and hearing the hue and cry of the witness the neighbouring persons came to the place when Ganesh Mazumdar assisted the witness for medical treatment of PW1. The witness also stated that police first came at the Primary Health Centre and thereafter they went to the house of Sarojit Kullu/accused. Police seized blood stained earth, a piece of polythene and a straight dao.
A seizure list was prepared and he signed the same which was marked as Ext.1/1. The witness also identified his signature in another seizure list which was marked as Ext.2/1. The 'dao' was also produced in Court which was marked as Mat. Ext.I. The witness also identified the accused in Court.
PW3, is a resident of Havelock and an employee of Revenue Department. He deposed that on 16.07.13 at about 07.30 pm he went to the market and saw a gathering in front of Primary Health Centre. The witness went there and met PW2 who stated to him that the accused assaulted his brother-in-law, PW1 with a dao. He also accompanied PW2 to the place of occurrence i.e. at the house of the accused Sarojit Kullu wherein blood stained on the tarpaulin, blood stained cemented portion, controlled cemented portion, an empty bottle of beer and a dao were recovered and seized. The witness identified his signature in the seizure list which was marked as Ext.1/2. He also identified his signature on another seizure list which was marked as Ext.2/2. The dao was identified which was marked as Mat. Ext.I. The witness also identified the accused in Court.
PW4, Govinda Baroi, is a resident of Havlock and deals in vegetables. He deposed that on 16.07.13 at about 08.00 pm when he was in his house he came to know that Sarojit Kullu assaulted Surjo Mohan Das with a dao, hearing such news he went to PHC, Havelock with one Maheswar Paik and found that PW1 was being treated by the doctor on his neck. Police authorities seized one T-shirt and towel of PW1 in their presence and he signed as a witness in the seizure list. He identified his signature which was marked as Ext.2/1. He also identified the T-shirt and towel which was marked as Mat. Ext.2. The witness also identified the accused in Court.
PW5, Maheshwar Paik, is a resident of Havelock, he deposed that he is a cultivator and had a vegetable shop. He narrated that in the year 2013 in the month of July, at about 07.00 pm the accused Sarojit Kullu injured PW1 Surjo Mohan Das. On hearing such news he along with PW4 went to PHC, Havelock and after going there they found that the treatment of Surjo Moha Das was in progress. Police at that time came out with a blood stained T-shirt and towel of Surjo Mohan Das. The witness identified his signature in the seizure list which was marked as Ext.3/2, he also identified the T-shirt and towel which was marked as Mat. Ext.2. He identified the accused Sarojit Kullu in Court. PW6, Ganesh Mazumder deposed that on 16.07.13 at about 07.
00 pm when he was returning from his shop he heard hue and cry from the house of Ranjit Kullu and having heard the same he rushed to the house and found that Surjo Mohan was lying on the ground in an injured condition and there was injury on his neck. He stated that Surjo Mohan was taken to PHC, Havelock by an auto-rickshaw and he came to know that the accused assaulted PW1, Surjo Mohan. He also identified the accused in Court. PW7 was declared as hostile witness as he denied of having any knowledge regarding the incident.
PW8, Stalin NS is the Inspector of police. He deposed that in the year 2013 he was posted at Havelock police station as SHO. On 16.07.13 he received a telephonic information that one Sarojit Kullu attacked Surjo Mohan Das with a dao and after receiving such information he formed a team and
proceeded to PHC Havlock with investigation kit and other police personnel. He found that the treatment of the victim was going on and as such he recorded the statement of his brother-in-law namely, Subash Mondal. He deposed that he recorded the statement of Subash Mondal as victim was not in a position to give any statement. The witness stated that he recorded the statement of the complainant and obtained his signature and he identified the said statement as well as the signature as it was prepared by him. The said statement was marked as Ext.4. The witness stated that after initiating the FIR he entrusted the investigation to Sub-Inspector of Police Mithun Kirtania, PW10. He opined that after conclusion of investigation he verified the case docket and accordingly, the Investigating Officer PW10 submitted charge-sheet under Section 307 of the Indian Penal Code. The witness identified the accused Sarojit Kullu in Court.
PW9, is Dr. Lustin, was a Medical Officer and on 16.07.13 he was posted at PHC Havelock, and medically examined the accused Sarojit Kullu. He found no injury on the person and accordingly prepared the injury report which was identified in Court and was marked as Ext.5. The witness stated that on 22.07.13 he also examined Surjo Mohan Das and on medical examination he found one cut injury on the left side of the neck. The said injury was caused according to him by a sharp weapon. The witness also stated that on 16.07.13 an opinion was sought for by the police authorities regarding the condition of the injured Surjo Mohan Das for giving statement when he opined that the injured was not in a position to give any statement. He identified the opinion
which contained his signature and the document which were marked as Ext.6. The injury report of Surjo Mohan Das was marked as Ext.7. He also deposed that Surjo Mohan Das was admitted in the hospital and on 17.07.13 he was referred to GD Pant Hospital.
PW10 is the Investigating Officer of the case who narrated regarding the chronology of examination of the witness, collection of materials which included the seizures and preparation of the site plan with index along with the injury report and medical case sheets. He identified the FIR which was marked as Ext.8, Original Statement which was marked as Ext.4, seizure memo which were marked as Ext.1 and Ext.2. The site plan along with index which were marked as Ext.9, the photographs which were marked as Mat Ext. III collectively and the blood stained earth, torn T-shirt having blood stain, dao , blood stained napkin, controlled earth and blood stained earth which were marked as Mat. Ext.I and II collectively. The labels on the same were marked as Ext.10 series.
Mr. D. Ilango, learned advocate appearing for the appellant submitted that the prosecution case suffers from major inconsistency so far as the time of the incident is concerned, the nature of version of the witnesses regarding the incident as also the attending circumstances. Learned Advocate further submitted that the injuries are not serious in nature so as to attract the provisions for which the appellant has been convicted and the learned trial Court accepted the prosecution version as gospel truth, thereby convicting the
appellant and imposing severe sentence. The trial Court's order requires interference of this Court and is liable to be set aside. Mr. Sumit Karmakar, learned Public Prosecutor appearing on behalf of the State has submitted that the chronology of events as presented by the prosecution established the case beyond reasonable doubt and in fact, there has been leniency shown by the learned trial Court while convicting the appellant for a lesser sentence under Section 308 of the Indian Penal Code. Learned Public Prosecutor stressed in respect of the nature of injury, the manner in which it was inflicted upon the victim and the vital part of the body where the accused/appellant inflicted such injury. It has been emphasized on behalf of the State that there is no scope for interference with the order of conviction and sentence so imposed by the learned trial Court as the overwhelming materials placed are beyond any reasonable doubt for convicting and sentencing the appellant.
In this case two most important witnesses are PW1, Surjo Mohan Das, who is the injured/victim and PW2, Subash Mondal who accompanied the injured at the house of the appellant and was present when the victim was interacting with the father of the appellant. The witness PW1 narrated the incident before the Court from the point of dispute regarding the accused opening a bottle of beer and drinking in front of his shop and on being requested by the injured, the accused abused him by filthy languages. PW1 accompanied by PW2 went to report such behaviour of the accused to
appellant's father at his house and when such narration was going on then the appellant again abused when the witness stated he would report the incident to police station. As a reaction the accused became furious and with the aid of a dao struck at the neck of the witness resulting in serious bleeding injury and loss of consciousness. Such version of PW1 remained unshaken even after he was compelled to undergo a lengthy cross-examination. In State of M.P. -Vs. - Mansingh & Ors., (2003) 10 SCC 414 the Hon'ble Supreme Court in paragraph 9 was pleased to observe as follows: "9. The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
Merely because there was no mention of a knife in the first information report, that does not wash away the effect of the evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode the credibility of an otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to the evidence of the injured witnesses are clearly inconsequential. It is fairly conceded by the learned counsel for the accused that though mere non-mention of the assailants' names in the requisition memo of injury is not sufficient to discard the prosecution version in entirety, according to him it is a doubtful circumstance and forms a vital link to determine whether the prosecution version is credible.
It is a settled position in law that omission to mention the name of the assailants in the requisition memo perforce does not render the prosecution version brittle."
The aforesaid observation of the Hon'ble Supreme Court was followed in State of U.P. -Vs. - Kishan Chand & Ors., (2004) 7 SCC 629; Lakshman Singh -Vs. - State of Bihar (2021) 9 SCC 191.
It would not be out of place to state that PW2, Subash Mondal was an eye-witness who corroborated the version of PW1 regarding the manner in which the incident took place at the house of appellant particularly the injury being inflicted with a deadly weapon upon the injured. Additionally, the evidence of PW9, Dr. Lustin who described the nature of injury upon the victim and when police reached his clinic for recording the statement of the injured, he categorically stated that at the relevant point of time the injured was not in a position to give any statement.
Having regard to the evidentiary value of the statement of the injured, PW1 being corroborated by PW2 and supported by the medical evidence of PW9, I am of the opinion that there is no scope for interference in respect of the finding of guilt of the learned Trial Court.
The order of conviction and sentence thus passed by the learned Additional Sessions Judge, Andaman & Nicobar Island, Port Blair in Sessions Case no. 08 of 2014 (corresponding to Sessions Trial No.01/2014) is hereby affirmed.
Thus, CRA 001 of 2020 is dismissed.
Department is directed to send back the Lower Court Records and communicate this judgment to the learned Court below. All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court.
Urgent Xerox certified photocopy of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities. (TirthankarGhosh, J.)