SUKUMARROYversusSTATE OF WEST BENGAL

A                                 SUKUMARROY
                                          v.
                             STATE OF WEST BENGAL

                                 OCTOBER 31, 2006

B                   [S.B. SINHA AND MARKANDEY KA TJU, JJ.]


          Penal Code, 1860; Section 304 Part I rlw Section 34:

            Murder-Accused and his relatives attacked the deceased with weapons
C   causing his death-Trial Court found accused appellant and another guilty
     of committing offences under Section 304 Part-I rlw .Section 34 !PC and
    sentenced them accordingly-Affirmed by High Court-On appeal, Held:
    Injuries on the body of the deceased anti-mortem in nature-It is evident from
     the post-mortem report that death was caused due to the wound injwy which
    shows that the accused intended to kill or cause such bodily injwy as is
D   likely to cause death-Evidence of eye-witnesses that the injury was caused
     by the accused is corroborated by the medical evidence-No evidence available
     on record to show that provocation/assault was caused by the deceased-
    Hence, the conviction under Section 304 Part-I /PC r/w Section 34 !PC fully
    justified.
E
         On the fateful day, when the deceased was collecting seedling from his
  land, appellant, his father, wife and sister-in-law entered into the land with
  weapons in their hands. On the issue of ownership of the land, an altercation
  ensued between the parties. In the course of the altercation, one of the accused
  persons struck the deceased on his head with lathi and the accused-appellant
F hit him with a bhali which pierced the abdomen of the deceased. On hearing
  hue and cry, the villagers gathered and took the deceased to a hospital, where
  he was declared dead. They also lodged an FIR in the Police Station. Police
  sent the dead body of the deceased for post-mortem examination. On completion
  of the investigation, a charge-sheet against the accused persons under
G Sections 147, 148, 149, 447/304 IPC was submitted by the Police. Trial Court
  found sufficient evidence against the accused and his father in committing
  th1~ crime. Both of them were convicted under Section 304 Part I read with
  Section 34 IPC and sentenced to suffer rigorous imprisonment for ten years.
  The High Court upheld the conviction. Hence the present appeal.

H                                        908
                    SUKUMAR ROY v. STA TE OF WEST BENGAL                   909
     The accused-appellant submitted that the deceased and his men A .
assaulted him and his relatives; that the injury on the deceased was an
accidental one; and that it was a case of self-defence as an altercation ensued
between him and the deceased because of his entering into the land/field which
was purchased by him from the deceased.

        Dismissing the appeal, the Court                                           B
      HELD:t.I. From the facts it is evident that the deceased died an
unnatural death which was homicidal due to injuries, which were anti mortem
in nature, and it is the accused-appellant who inflicted injury upon the body
of the deceased with bhali (ballam) causing his death. (912-C)
                                                                                   c
      1.2. From the post-mortem report, it is evident that the deceased died
due to the wound in his abdomen which was 4 inches deep. 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 who caused the injury on the deceased. D
The prosecution evidence of the eye-witnesses is corroborated by the medical
evidence. (913-C)

      1.3. 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-sharers in the land. There is no evidence        E
on record to show that the deceased and his men assaulted the appellant and
his family members. Hence, the conviction under Section 304 Part I read with
Section 34 IPC was fully justified. (913-E, F)
      1.4. It is well settled that minor unexplained injuries on accomplice will
not help the case of the accused. Moreover, the nature of alleged injuries on      p
the body of the wife and sister-in-law of the accused-appellant has neither been
stated by them nor have any injury reports of any doctor been produced, and
no doctor has been examined as a witness in support of such injuries.
                                                                      (913-F, G)

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. I 101 of G
2006.

      From the Final Judgment and Order dated 22.12.2005 of the High Court
of Calcutta in C.R.A. No. 5/1998.

        N.R. Choudhary and Somnath Mukherjee for the Appellant.                    H
    910                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A          Radha Rangaswamy for the Respondents.

           The Judgment of the Court was delivered by

           MARKANDEY KATJU, J. Leave granted.

B          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 !PC, has been upheld.

          Heard learned counsel for the parties and perused the record.
c       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 Unnila 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
D 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
E 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 1.0. on the basis off.LR. 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 Prafulla (vide Exhibit 4). The 1.0. also visited the
  spot and seized alamats from the place of occurrence (vide Exhibits 2 and 6)
F 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 1.0. 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 1.0.
G (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.J. Sadh.an Chandra Saha was transferred from the station the next man
  S.1. 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
H the accused persons under Sections 147, 148, 149, 447/304 !PC. The accused
            SUKUMAR ROY 1·. STATE OF WEST BENGAL [MARKANDEY KATJU, J.]       9J J

    . Sukumar Roy was charged under Section 304 Part I read with Section 34 IPC A
      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 B
     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 C
     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 !PC and
     sentenced him.. tc;>.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 D
     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 E
     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.l, Pasupati Nayak, P.W. 2 Nidhiram Nayak, both being cousin brothers
     of the deceased, P.W.3, Bhudar Chandra Das, neighbour, P.W.4, Sankar Kumar F
     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 bhaii which pierced his abdomen and as a result he
     died. The testimonies of these witnesses as to the •;ause 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 G
     dissection of the body of the deceased found the following injuries:

            (i)   One penetrating wound 2" x 31."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 H
    912                     SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A                  abdominal scrota. The whole peritoneal cavity was full of blood
                   about 2/ 2-1/2 lbs.
            (ii)   One incised wound 2" x 'Ii" x '!.i" muscle deep over the thinner
                   eminence right palm.
            (iii) One incised wound over the vault of the scalp right side 2 'Ii"
B                 with bone scratch mark.

           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 Nos. I and 2 can be caused by sharp cutting
C   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
D 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.

E          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
F   examination has stated as under:

            "(a) One penetrating wound 2" x 31."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.
G           The whole peritoneal cavity was full of blood about 2/ 2-112 lbs.

            (b) One incised wound 2" x 'Ii" x W' muscle deep over the thinner
            eminence right palm.

            (c) One incised wound over the vault of the scalp right side 2 }!," with
H           bone scratch mark.
             SUKUMAR ROY v. STATE OF WEST BENGAL [MARKANDEY KATJU, J]           913

             (d) Liver abscess and pus was coming out and 8 ounces of partly            A
             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. I can be caused by bhali or ballam. Injury No. 2 can
    be caused by sharp cutting weapon. Incised looking wound on the vault of            B
    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       C
    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 the medical evidence.

           Learned counsel for the appellant submitted that it was a case of self-      D
    defence because the appellant had purchased the land in question from the
    deceased who had entered into his lan<l 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.
                                                                                        E
          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.              F
                                           /
           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             G
    have any injury reports of any doctor been produced, and no doctor has been
1   examined as a witness in support of such injuries.

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

    S.K.S.                                                       Appeal dismissed. H