Judgment:
Girish Chandra Gupta, J.
1. This appeal is directed against a judgment dated 23rd April, 1990 passed by the learned Additional Sessions Judge, 4th Court, 24 Parganas (S), Alipur, in Sessions Trial No. 2(7) 1989 arising out of Mandir Bazar P.S. Case No. 11 dated 23rd April, 1984 by which the accused Sekhar Naiya was convicted under Sections 302/148/323 of IPC. The accused Sunil Naiya, Prashanta Naiya, Satya Naiya, Chandi Naiya, Manoranjan Naiya and Gorachand Naiya were convicted under Section 148, IPC. The convict Sunil Naiya and Prakash Naiya were also convicted under Section 323, IPC. By an order dated 24th April 1990 the convict Sekhar Naiya was sentenced to rigorous imprisonment for life for the offence punishable under Section 302, IPC. He was further sentenced to rigorous imprisonment for 2 years for the offence punishable under Section 148, IPC and was further sentenced to rigorous imprisonment for one year for the offence punishable under Section 323, IPC. All the sentences were however directed to run concurrently. The convicts Sunil Naiya and Prashanto Naiya were sentenced to rigorous imprisonment for 2 years for the offence punishable under Section 148 and further sentenced to rigorous imprisonment for one year for the offence punishable under Section 323, IPC. Both the sentences were directed to run concurrently. The convicts Satya Naiya, Chandi Naiya, Manoranjan Naiya and Gorachand Natya were sentenced to rigorous imprisonment for 2 years for the offence punishable under Section 148, IPC. Accused Khokan Naiya, was found not guilty of the charges framed against him and accordingly he was acquitted from all the charges framed against him by the learned Trial Court. All the 7 convicts have come up in appeal.
2. The facts and circumstances of the case briefly stated areas fallows:
The convicts were the, neighbours of the victim Suryakanto Naiya. The accused Sekhar and Pankaj were alleged to have insulted Smt. Sandhyarani Naiya, wife of Suryakanto, a young woman aged about 23 years. She naturally was offended and informed the matter to her husband Suryakanto who was then in Calcutta. Suryakanto went home. Presumably after he ascertained about what had offended his wife, he lodged a general diary at the police station and returned home at about 10 a.m. on 23rd April, 1984. Soon thereafter, there was an altercation between the said Suryakanto on the one hand and the accused Prakash on the other. During this altercation Prakash instigated his son Sekhar to assault Surya. Surya was assaulted by Sekhar with a ballam. Sandhya, his wife naturally rushed to rescue her husband. She was also assaulted. She raised alarm as a result whereof the sons of the brother of Suryakanto rushed to the place of occurrence. They wanted to rescue Suryakanto and his wife Sandhya and in the process they were also beaten up. Suryakanto was severely injured. He was admitted to the local hospital. His condition deteriorated whereupon he was shifted to Bangur Hospital where he died on 26th April, 1984. P.W. 2 Sandhyarani Naiya the widow of the deceased Suryakanto, P.W. 4 Subarna Naiya, P.W. 5 Jaydev Naiya, P.W. 6 Balakrishna Naiya and the P.W. 7 Nirapada Naiya were also injured during the incident.
3. P.Ws. 4, 5, 6 and 7 are all sons of Pulin, the elder brother of the deceased Suryakanto. P.Ws. 2 and 5 were examined by Dr. Goswami (P.W. 12), P.W. 4 was examined by Dr. Mondal (P.W. 11). P.W. 4 disclosed to the P.W. 11 Dr. Mondal the names of his assailants. The deceased Suryakanto was examined by the P.W. 12 Dr. Goswami. He was admitted to' the Diamond Harbour Sub-Divisional Hospital from where he was shifted to the Bangur Hospital where he died. P.W. 1 Shiboprasiur Naiya and the P.W. 3 Gopal Naiya were declared hostile. However, both the hostile witnesses had deposed about the incident so that as regard the fact that such an incident happened in which several persons, indicated above, were injured, can safely bb inferred. P.W. 4 Subarna Naiya in his cross-examination deposed, inter alia, as follows:
I know the Anchal Pradhan. Prakash Naiyer was called: He had altercation with Surya Kanta Naiyer prior to the incident. The altercation was on the matter of defaming my aunt, by Shekhar Naiyaer and Pankaj Naiyer on Sunday.
4. P.W. 8 is a constable who escorted the dead body of Suryakanto to the morgue. P.W. 9 is a Sub-Inspector of Police who accepted the written complaint from the P.W. 2. P.W. 10 is the Autopsy Surgeon. P.W. 11 Dr. Mondal was at the relevant time attached to Naiyerhat Primary Health Center. P.W. 12 Dr. Goswami was attached the Diamond Harbour Sub-Divisional Hospital. P.W. 13 is a Sub-Inspector of Police who filed the charge-sheet. P.W. 14 is the I.O. P.W. 15 witnessed the seizure of bloodstained wearing apparel of the deceased. P.W. 16 is another Sub-Inspector of Police who conducted the inquest.
5. Mr. Sanat Chowdhury, learned Advocate appearing in support of the appeal contended that the written complaint cannot be relied upon because there is no knowing who scribed the same nor the de facto complainant (P.W. 2) was sure about the contents thereof.
6. From the evidence of the P.W. 2 it appears that the written complaint was scribed by a Police Officer of the Police Station. She however admitted that the same was not read over to her. She also deposed in this regard as follows:
I made a statement to police. After the incident I went to the P.S. to lodge a complaint. But I was returned from the P.S. and no action was taken. I again went to the P.S. at about 4 to 4.30 p.m. At that time police took the complaint. I gave my LTI on the FIR.
7. This part of the evidence of the P.W. 2 was not challenged in her cross-examination.
8. P.W. 9 Sub-Inspector Sikdar deposed that he accepted the written complaint from the P.W. 2 Sandhya Naiya. P.W. 2 is an illiterate woman. The fact that she made a statement to the police and the police reduced the same to writing which was accepted as the written complaint after she had put her Ml are well proved. The mere fact that the written complaint was not read over to her of the fact that the P.W. 9 the Sub-Inspector Sikdar was unable to tell the Court as to mho had scribed the written complaint, in our view, would not render-the written complaint an inoperative document.
9. The second submission advanced by Mr. Chowdhury was that the place of occurrence is uncertain. According to the P.W. 1, a hostile witness, the incident took place on the southern side road of the house of the deceased Suryakanto. According to the P.W. 2, widow of the deceased, the incident took place inside the house of the victim. According to the P.W. 3 the incident took place on the road which is on the southern side of the house of the deceased Suryakanto. According to the P.W. 4 the incident took place in the verandah of the deceased Suryakanto. According to the P.W. 5 the incident took place in the southern side of the house of Suryakanto. According to the P.W. 6 the incident took place by the side of the entrance gate of the house of Suryakanto. According to the P.W. 7 the incident took place in an open space. The I.O. the P.W. 14 did not find any blood marks at the place of occurrence. Mr. Chowdhury therefore wanted us to hold that the place of occurrence is uncertain. He in support of hfts submission relied on a judgment in the case of Kadir v. State reported in 1987 Cri LJ 101 a Division Bench Judgment of the Delhi High Court wherein the Division Bench rejected the prosecution case because the evidence showed that the incident took place in front of the house of the accused whereas the case of the prosecution was that the incident took place in front of the house of the victim. The learned Judges in that case were of the view that the deceased in all probability had gone to the house of the accused accompanied by a group armed with lathis and the accused must have in self-defence caused the injury to the deceased. It would thus appear that based on the peculiar facts of the case, the prosecution case was rejected by the Delhi High Court. In the case before us all the witnesses including the hostile witnesses have deposed that the incident took place in or near about the house of the deceased Suryakanto. It is probable that the altercation started on the road in the south of the fact, has been deposed to by the three of the witnesses. It is also probable that the deceased may have run for life inside his house where lie was assaulted by the accused persons. The evidence of all the seven witnesses taken together does not project an improbable story. Moreover, the submission of the learned Advocate loses much of its force in view the case suggested on behalf of the defence to the P.W. 4, an injured witness, who was suggested that the accused Sekhar and Pankaj had also sustained injury in the same transaction which he denied. Similarly the P.W. 6 Balakrishan was suggested on behalf of the defence that the incident was a fight between two rival parties which he denied. The fact that the I.O. did not find marks of blood at the place of occurrence is explained by the fact that he admitted in his cross-examination that he did not go to the place of occurrence on 23rd April, 1984 rather he reached there on the following day. By that time the marks of blood might have been washed out. The injured witnesses being P. Ws. 2, 4 and 5 were examined by the doctors being P.Ws. 11 and 12 and their evidence lends assurance to the Court as regards the veracity of the case of prosecution. Reliance in this regard may be made to the judgment in the case of Mohar v. State of U.P. reported in : 2002 (7) SCC 245 : AIR 2002 SC 3130 wherein the following view was expressed:
The testimony of an injured witness has I its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and has seen the occurrence by himself. Convincing evidence would be required to discredit an injured witness. Similarly, every discrepancy in the statement of a witness cannot be treated as fatal. A discrepancy which does not affect the prosecution case materially cannot create any infirmity.
10. We are under the circumstances unable to accept the submission that the place of occurrence is uncertain.
11. The third submission advanced by Mr. Chowdhury was that according to the evidence of the P.W. 2 her, husband was in the Diamond Harbour Sub-Divisional Hospital for two days but no records of that hospital have been produced. This however is an incorrect submission. We have before us the injury report issued by the Diamond Harbour Sub-Divisional Hospital which goes to show that the deceased Suryakanto was admitted with injuries op the head, face and other parts of the body which were fresh in nature. This injury report was prepared by (Dr. Goswami (P.W. 12).
13. The fourth submission advanced by Mr. Chodhury was that the Autopsy Surgeon did not find any incase injury and further according to his evidence the death could have been due to accident. We have not been impressed by this submission of Mr. Chowdhury because the Autopsy Surgeon did, in fact, find a large number of injuries caused by blunt weapon which according to him could have caused death. His evidence in that regard may be noticed:
On examination I found the following injury over the person of the dead body.
1. Abrasion detected over chest wall on left side measuring 2' x 1/2'.
2. Abrasion over left shoulder measuring 2' x 1/2' L. Hematoma detected over left eyebrow measuring 2' x 1/2' with bruises underneath.
One Haematoma over frontal region measuring 4' x 2' with bruises underneath measuring 6' x 8'. Bruises detected over whole of the skull.
One stitched wound over forehead right side with 2 stitches on removal of the stitch measured 1' x 1/2' x muscle deep.
Communic fracture of right temporal frontal and both parieal bones. Fracture based of the skull over both witings and the body of the sphnoid measuring 6' into length.
Death in my opinion was due to effects of the injury stated above ante-mortem and accidental in nature.
I found 3 injuries on the forehead. The haematoma might be caused by assault by blunt lathi. I found three fractures on the head. This fractures might caused by an assault of heavy lathi. The fracture on the base of the scalp is not possible without the assault of something heavy. I consider the head to be a vital of body. A man may die due to the cumulative effect of the injury detected by me on the dead body. Even a man may die due to the injury as in this case was found on the head including forehead.
13. The opinion that the death might, have been caused due to accident is a mere possibility which cannot be accepted when so many injuries which according to him were likely to have been inflicted by blunt weapons were actually found by him. These injuries found by him on the person of the deceased coupled with the fact they could have been inflicted, by blunt weapon go to corroborate the version of the eye-witnesses most of whom are injured witnesses who were also beaten up in the same transaction.
14. The fifth submission advanced by Mr. Chowdhury was that the written complaint was received in the police station on 23rd April 1984 but it appears to have been signed by the learned Magistrate on 27th April 1984. There is therefore delay of more than 72 hours which leaves enough scope for concoction. He in support of his submission relied on a judgment in the case of Iswar Singh v. State of U.P. reported in : AIR 1976 SC 2423. In the aforesaid judgment. Their Lordships held as follows:
Mr. Frank Anthony appearing for appellant Ishwar Singh submitted that in affirming the judgment of the trial Court, the High Court also overlooked certain important aspects of the case that the Sessions Judge had failed to consider. He pointed out that the FIR which is stated to have been lodged at 9.05 a.m. on February 14, 1973 was sent out from the police station the next day, February 15; the time when it was despatched is not stated, but as appears from the record that the Magistrate received it on the morning of February 16. The Court of Magistrate was nearby, which makes it difficult to understand why the report was sent to him about two days after its stated hour of receipt at the police station. Section 157 of the Code of Criminal Procedure, 1898 as well as of 1973 both require the first information report to be sent 'forthwith' to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis of suspecting, as Mr. Anthony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to Introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in Court differs at feast in two very important particulars from that narrated in the FIR Mahabir Singh, who lodged the first information report, stated in Court that he had invited some people to this house to effect a settlement between, him, and Ishwar Singh and that he had also sent Ghanshyam to call Ishwar Singh there. The FIR does not mention anything like this. From the FIR it appears as if the accused persons came uninvited to his house, demanded why he had demolished the drain, and started assaulting him and the other persons who mere present there. It is also difficult to understand why Mahabir should invite anyone to his house for a settlement, if really Ishwar Singh had permitted him to demolish the drain as he claimed. Further, the FIR does not mention that Mahabir and Saryapal wielded lathis is their defence when attacked and that this resulted in some of the accused getting injured: but is what both Mahabir (P.W. 1) and Satyapal (P.W. 2) stated in their evidence in Court. These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eye-witnesses 'cannot be accepted at its face value', as observed by this Court in Mitter Sain v. State of U.P. : AIR 1976 SC 1156.
15. The FIR goes to show that it was sent out from the police station on 24th April 1984 at 8 hrs. There is therefore no delay on the part of the police in sending the FIR to the jurisdictional Magistrate. In this case no one was arrested immediately after the police started investigation and that explains why there was no urgency before the learned Magistrate to endorse the FIR produced before him by the police. The mere fact that the learned magistrate endorsed the FIR on 27th April 1984 does not go to show that the despatch by the police was belatedly made. Police did, in fact, send it on 24th, April 1984 at 8 a.m. In the case before their Lordships when was the FIR sent to the jurisdictional Magistrate was not indicated but in the present case that has clearly been indicated. Moreover the variations between the written complaint and the evidence adduced in Court in the case before their Lordships were very vital. No such criticism in the present case was advanced. We are' therefore unable to attach any importance to this submission of Mr. Chowdhury. We are also inclined to draw presumption under Section 114 of the Evidence Act that the official acts were, done regularly unless anything to the contrary is shown. Nothing bas been shown to us to displace the presumption. In the absence of any other infirmity we are unable to view the case of prosecution with suspicion merely because the FIR was endorsed lay the Jurisdictional Magistrate on 27th April, 1984. Reference in this regard may also be made to the Judgment in the case of Pala Singh v. State of Punjab reported in : 1972 (2) SCC 640 wherein the following view was expressed:
Shri Kohli strongly criticised the fact that the occurrence report contemplated by Section 157, Cr.P.C. was sent to the magistrate concerned very late. Indeed, this challenge, like the argument of interpolation and belated despatch of the inquest report, was developed for the purpose of showing that the investigation was not just, fair and forthright and, therefore, the prosecution case must be looked at with great suspicion. This argument is also unacceptable. No doubt, the report reached the magistrate at about 6 p.m. Section 157, Cr.P.C. requires such report to be sent forthwith by the police officer concerned to a magistrate empowered to take cognizance of such offence. This is really designed to keep the magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159. But when we find in this case that the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to our notice, then, however improper or objectionable the delayed receipt of the report by the magistrate concerned is cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. It is not the appellant's case that they have been prejudiced by this delay.
16. The sixth submission advanced by Mr. Chowdhury was that the police did not arrest the accused persons promptly which, is a circumstance which discredits the version of the prosecution. He relied on a judgment of the Apex Court in the case of Jagdal Singh v. State of M.P. reported in : 2003 Cri LJ 3528. In the case before their Lordships it was held 'story put forth by the prosecution is highly improbable'. It is in such a case that the shortcomings on the part of, the I.O. were also viewed with suspicion. The .O. in the present case has deposed that the accused persons surrendered and they were not arrested. Records reveal that the accused persons surrendered on 27th April, 1984. The victim Suryakanto died on 26th April 1984, Can it be said that the police acted negligently in these fact. The answer in clearly in the negative. We are therefore unable to accept this submission of Mr. Chowdhury.
17. The seventh submission advanced by Mr. Chowdhury was that the deceased was a dacoit and he had gone to participate in a dacoity on the day previous to the day of incident. It is possible that the injuries were contacted by the deceased in that dacoity. This submission, in our view, is without any foundation whatsoever. P.W. 1, a hostile witness, whose evidence was relied upon by Mr. Chowdhury for the purpose of this submission, did, in fact, depose that there was a dacoity on the previous night in the house of one Kamini Haider. He also deposed that the deceased Suryakanto had gone to that place but he did not even suggest that Suryakanto went there to participate in the dacoity. He has on the contrary confirmed the incident. His deposition in Court was however contrary to what he had stated during his examination under Section 161, Cr.P.C. He deposed that it was a fight between the two parties which is also the case suggested by the defence. There is therefore no reason to think that the deceased might have contacted the injuries somewhere else or in a dacoity for which there is no evidence whatsoever. This submission is nullified altogether by the fact that besides the victim Suryakanta, four witnesses were also injured in the same transaction. The case suggested on behalf of the defence was that two of the accused persons were also injured in the same transaction which was also denied by the witness.
18. Considering the evidence on record and the submissions of Mr. Chowdhury which we already have dealt with we have no manner of doubt that the incident did, in fact, take place. The case of the prosecution is well proved. However we are inclined to think that the offence of the accused Sekhar cannot be brought within the four corners of Section 302, IPC. We are further inclined to think that the case is covered by the fourth exception engrafted to Section 300 of the Indian Penal Code which reads as follows:
Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault.
19. Mr. Dutta Gupta, learned Advocate appearing on behalf of the State was unable to show any definite piece of evidence to hold that the accused persons acted with any premeditation. Each of the witnesses to the incident has deposed that there was an altercation concerning reputation of the wife of the deceased. There is evidence to show that on the date of the incident the deceased had gone to the police station and lodged a general diary. After he came back from the police station the altercation started. During this altercation at the spur of the moment this incident took place. We are therefore inclined to step down the conviction of the accused Sekhar under Section 302 to Section 304 Part II. We are not inclined to hold that he intended to cause death or such a bodily injury which was likely to cause death. He certainly had the knowledge that the injury was likely to cause death. But he did not intend to cause his death. P.W. 2 the widow of the deceased Suryakanto deposed that when she was beaten up the reverse of the ballam was used. Most of the injuries found by the Autopsy Surgeon were caused by blunt weapon. Therefore in our considered opinion this is a case within the part II of Section 304 of IPC. The conviction of all the accused persons under Section 148 and 323 is however maintained. The punishment of the convict Sekhar is reduced to 8 years rigorous imprisonment for the offence punishable under Section 304, Part II, IPC.
20. It was also submitted by Mr. Chowdhury that four of the accused persons were minors on the date of the incident. It appears from the ossification test that the accused Satya Naiya on 20th December 2006 was aged between 35-45 years. It further appears that Gorachand Naiya on 26th December 2006 was also in the same range of age. It further appears that Manoranjan Naiya and Ghandi Chandra Naiya on 26th December 2006 were also in the same age group. In, the event these favour convicts are treated to be 35 years old on 26th December 2006, they were in the age group of 13/14 year on the date of incident.
21. These four appellants were therefore juvenile on the date of the incident. Following the law laid down in Babban v. State of Bihar reported in : 2007 (13) SCC 88 : 2008 Cri LJ 1038 we uphold the finding of conviction recorded by the learned trial Court, but the sentence against them is set aside. They cannot now be sent to remand home. They are as such released and discharged of their obligation under the bail bond furnished by them.
22. Rest of the appellant shall undergo the punishment awarded by the learned Trial Court as modified. The appeal therefore partly succeeds.
23. It appears from the record that the appellant No. 1 Sekhar Naiya was released on bail granted by this Court by an order dated 24-8-1990 and the appellants No. 2 and 3 were released on bail by an order dated 9-7-1990. The bail bonds in respect of the appellants No. 1, 2 and 3 are cancelled. The appellant No. 1 is directed to surrender at once in order to serve out the sentence as modified by this order. The appellants No. 2 and 3 are also directed to surrender at once in order to serve out the sentence awarded by the learned Trial Court. The appellant Nos. 4 to 7 namely Satya Naiya, Chandi Charan Naiya, Manoranjan Naiya and Gorachand Naiya are exempted from undergoing punishment although the conviction is upheld. They were released on bail by an order dated 9-7-1990 during the pendency of this appeal to which they need not surrender. Bail/Surety bonds of these appellants shall stand discharged.
24. Lower Court Records with a copy of this Judgment be sent down to the learned Trial Court forthwith for information and necessary action.
25. Urgent xerox certified copy of this judgment, be delivered to the learned Advocate for the parties, if applied for, upon compliance of all formalities.
Kishore Kumar Prasad, J.
26. I agree.