Umapada Kayal vs State Of West Bengal

2. Briefly stated, the prosecution story, as

emerging from the first information report, was that the

deceased Shaktipada Kayal along with his younger brother

PW 6 Kush Kumar Kayal and their few relatives had gone

to the tank (pukur) for catching fish and while coming

back, they saw accused persons plucking fruits from the

palm tree belonging to the deceased. On questioning as

to why the fruits were being plucked, the deceased and

his brother PW 6 were assaulted by as many as nine

persons. At once, Umapada picked up a chowki (a stick

with spikes) and struck a blow on the left side of the chest of deceased. The chowki penetrated into his body.

PW 6 also sustained injuries in the incident. The

deceased was carried immediately to P.G. Hospital,

Calcutta but did not survive. As a result, the first

information report came to be lodged on the next day

i.e., on 6.6.1983.

3. After usual investigation and collecting the

statement of the concerned witnesses, a charge-sheet came

to be filed against as many as nine persons. Learned

Additional Sessions Judge vide judgment dated 20.9.1988

acquitted all the nine accused holding that the offence

under Section 302 read with Section 34 I.P.C. was not

proved against any of the accused.

4. The judgment of the learned Additional Sessions

Judge was challenged before the High Court. The High

Court vide judgment dated 23.8.2002 dismissed the appeal

against all the accused except the appellant-accused No.

1 Umapada Kayal and convicted him for offence under

Section 304 Part II I.P.C. and sentenced him to undergo

10 years' rigorous imprisonment. The High Court relied

on the evidence of the injured witness PW 6 Kush Kumar

Kayal as also the other two eye witnesses PW 7 Kalipada

Kayal and PW 8 Bhabesh Chandra Kayal. The High Court has

also referred to the medical evidence of PW 21 Dr. Asoke Kumar Maitra who had performed the post-mortem on the

deceased. Hence, the present appeal.

6. We have heard learned counsel for the parties and

have carefully gone through the evidence of all the

witnesses.

7. Mr. P.K. Roy, learned counsel appearing for the

appellant painstakingly took us to the evidence of all

the witnesses. He submits that the High Court has erred

in allowing the appeal against acquittal only against the

present appellant who was accused No. 1. Learned counsel

further submits that the reasons given by the learned

Additional Sessions Judge were proper as he had the

benefit of seeing the witnesses and under such

circumstances, unless the reasons given by the learned

Sessions Judge were considered and found to be perverse,

the order of acquittal should not have been interfered

with by the High Court.

8. The argument is attractive but without substance

in this case. It is held in a number of judgments of

this Court that in an appeal against acquittal, the whole

appeal is open on facts as well as on law and the High

Court can go into re-appreciation of evidence if it finds

that the said appreciation was not proper at the trial level and that is precisely what has happened here. PW 1

Kalipada Kayal and PW 6 Kush Kumar Kayal have

specifically referred to the role played by the

appellant-accused Umapada Kayal in striking the deceased

with 'chowki'. Both the witnesses have been extensively

cross-examined but the whole cross-examination is

irrelevant since there has been no cross-examination in

respect of the actual incident. Both the witnesses had

asserted in their evidence that the chowki was struck in

the body of the deceased by the appellant and had to be

pulled out. The other important circumstance is the oral

dying declaration of the deceased. He told PW 6 Kush

Kumar Kayal "Uttamda amake merechhe" (Uttamda beat me).

Strangely, there is no cross-examination of PW 6 Kush

Kumar on this aspect.

9. We have gone through the evidence of PW 21 Dr.

Asoke Kumar Maitra who conducted the post-mortem on the

body of the deceased. PW 21 in his statement very

clearly asserted that the injuries which were found on

the body of deceased could have been caused by the said

weapon (chowki) which was shown to him at the time of

evidence. There is very little cross-examination in the

respect of those injuries and as a matter of fact those injuries were quite probable. As per the evidence of

PW 21, injury No. 4 found on the body of deceased

corresponds well with the blow of the chowki. It is true

that the said injury was a single serious injury but the

deceased had suffered other injuries probably due to

fall. Therefore, we find no error in the judgment of the

High Court when the High Court has chosen to rely on the

evidence of PW 6 Kush Kumar Kayal, PW 7 Kalipada Kayal

and PW 8 Bhabesh Chandra Kayal. In fact, the High Court

has considered the evidence of the said witnesses in

depth. Therefore, even if the High Court had not given

any reason to find fault with the judgment of acquittal,

in our opinion, the High Court was correct in coming to

its conclusions.

10. We ourselves have seen the judgment of the trial

court which does lack the proper appreciation of the

evidence of the eye witnesses as also the evidence of the

Doctor who had conducted the post-mortem. Therefore, in

our opinion, the High Court committed no mistake in re-

appreciating the evidence. In that view, we do not find

any merit in this appeal and we would dismiss the same.

However, Mr. P.K. Roy, learned counsel appearing for the

appellant very earnestly urged before us that this incident had taken place 26 years back and the accused

has also now crossed the age of his youth. According to

the learned counsel, the accused is not enjoying a good

health. Under such circumstances, the imprisonment of 10

years' R.I. would be a harsher punishment.

11. Mr. Tara Chand Sharma, learned counsel appearing

on behalf of the State of West Bengal, however, suggests

that the accused must be in late 50's and the accused had

shown no mercy while giving a blow of chowki to the

deceased and, therefore, he does not deserve any

sympathy. As a matter of fact, according to the learned

counsel for the State, there should have been an appeal

against the judgment of the High Court inasmuch as the

High Court has converted the offence from Section 302 to

304 Part II I.P.C. However, that appeal not having been

filed, it is not open to the learned counsel to suggest

that the accused could and should have been convicted for

the offence under Section 302 I.P.C. Be that as it may,

we do not find any difficulty in confirming the

conviction of the accused for an offence under Section

304 Part-II I.P.C.. However, considering the fact that

the incident took place 26 years back and the accused had

inflicted only a single blow, we would choose to reduce the sentence to five years' rigorous imprisonment.

12. With this modification, the appeal is partly

allowed. The bail bonds of the accused-appellant are

cancelled. The appellant is directed to surrender within

two weeks from today to serve out the remaining sentence

failing which non-bailable warrants shall be issued

against him. The original record be sent back

immediately.

.......................J. [ V.S. SIRPURKAR ]

......................J. [ DEEPAK VERMA ] NEW DELHI OCTOBER 6, 2009.