Swapan Kumar Senapati vs State Of West Bengal

Crl.A. 2129 of 2009 REPORTABLE

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2129 OF 2009

SWAPAN KUMAR SENAPATI ..... APPELLANT

VERSUS

STATE OF WEST BENGAL ..... RESPONDENT

O R D E R

1. We have heard the learned counsel for the parties.

2. On the 22nd July, 1992 at about 11:00a.m. Satkari

Senapati, hereinafter referred to as the deceased, aged

about 76 years was assaulted by his nephew Swapan Kumar

Senapati, the appellant herein, in the presence of,

amongst others, P.W. 3 and P.W. 7, the wife and servant

of the deceased. As a consequence of the attack, a

First Information Report was registered at the Police

Station, on the 25th July, 1992, under Sections 341 and

325 of the IPC. In the First Information Report, it was

stated that the relations between the parties were

strained on account of some litigation and that the

appellant had attacked the deceased, had sat on his

chest, and had hit him on his head with a stone. It

appears that the condition of the deceased deteriorated

on the 25th of July, 1992 and though he was taken for

treatment to several hospitals, he ultimately died. The

Crl.A. 2129 of 2009 REPORTABLE

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dead body was subjected to a post mortem examination and

it was noted that there was no external injury on the

dead body and that the death had been caused by intra

cranial and extra cerebral haemmorhage in the brain.

3. The trial court on a consideration of the evidence

of P.Ws. 3 and 7, (the other eye witnesses having been

declared hostile), found that the prosecution story

could not be believed. The trial court, accordingly,

acquitted the appellant. The High Court, has, in

appeal, reversed the judgment of the trial court and

relying on the evidence of P.Ws. 3 and 7 as also the

medical evidence has convicted him under Section 304

(II) of the IPC and sentenced him to seven years

rigorous imprisonment. It is in this situation that the

matter is before us after the grant of special leave.

4. We have heard Mr. Pradip Ghosh, the learned Senior

Counsel for the appellant and Mr. Satish Vig, the

learned counsel for the State of West Bengal.

5. Mr. Ghosh has first argued that the statements of

P.Ws. 3 and 7 could not be believed as they were

interested witnesses and as the incident had happened in

the middle of a local street, the prosecution should

have produced some independent witnesses from that

location. He has further argued that the medical

evidence did not support the ocular version and that in

Crl.A. 2129 of 2009 REPORTABLE

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any event a case under Section 304 (II) of the IPC was

not made out and if at all the conviction ought to have

been recorded under Section 325 thereof.

6. Mr. Satish Vig has, however, supported the

judgment of the High Court.

7. We have absolutely no reason to doubt the presence

of P.Ws. 3 and 7. Although there appears to be some

delay in the lodging of the FIR, this can be explained

by the fact that the dispute was within the family and,

initially, in the absence of any external injury, it did

not appear that any serious damage had been caused to

the deceased and it was only after his condition had

declined rapidly that the First Information Report had

been lodged. We also see that in a family dispute

independent witnesses are reluctant to come forward to

give evidence. We, however, feel that in the facts of

the case the conviction under Section 304 (II) was

wrong. We have gone through the evidence of P.W. 8 Dr.

Bibhuti Baran Senapati who had conducted the autopsy on

the dead body. He found a bilateral peri orbital

haematoma on the opening of the skull and no external

injury was present. He also noted that the cause of

the death was intra cranial haemmorhage. When cross

examined the doctor deposed that if somebody was hit by

a stone or hard substance it was likely that there would

Crl.A. 2129 of 2009 REPORTABLE

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be some external injury. Likewise, P.W. 9, Dr. Murari

Mohan Kumar who had examined the deceased on the 24th

July, 1992 emphatically stated that there was no

external injury on the head and if there had been one it

could have been detected by a CT scan. It has also come

in the evidence of P.W. 3 that after the appellant had

sat on the chest of her husband he had held his head and

repeatedly hit it against the ground. It appears,

therefore, that the injuries caused were apparently not

with a stone but it was the concussion and the rough

handling by the appellant that had led to the internal

injury to the brain which had resulted in haematomal

haemmorhage and then to death. We are, therefore, of

the opinion that the matter would fall squarely under

Section 325 of the IPC. We are told that the appellant

has undergone about two years of the sentence. We feel

that the ends of justice would be met if the sentence is

reduced from seven years to that already undergone by

him.

8. The appeal stands disposed of in the aforesaid

terms.

........................J [HARJIT SINGH BEDI]

Crl.A. 2129 of 2009 REPORTABLE

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........................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI FEBRUARY 24, 2011.