Bikram Dorjee Vs. State of West Bengal - Court Judgment

Girish Chandra Gupta, J.

1. This appeal is directed against a judgement and order dated 24 March, 2004 passed by the learned Additional Sessions Judge, Fast Track Court, Alipurduar in Sessions Trial No. 26/03 arising out of Sessions Case No. 58/2003 convicting the appellant under Section 304(1) of the Indian Penal Code and sentencing him to suffer imprisonment for life and a fine of Rs. 5,000/-, in default, to suffer further imprisonment for one year.

2. The prosecution version of the case briefly stated is as follows:

On 14th June, 2002 at about 430 p.m. the victim Santosh accompanied by the de facto complainant Sankar Dorjee went to the ghoognee/chowmin shop in front of a video hall at Birpara Hut. All on a sudden the accused Bikram Dorjee appeared at the spot and stabbed the victim Santosh in his belly by a sharp knife. Other parts of the body were also stabbed. The de facto complainant out of fear ran away from the place of occurrence and informed the matter to the parents of the victim and others. The victim was removed to Birpara Hospital by the people who had assembled at the place of occurrence. From the Birpara Hospital the victim was referred to Jalpaiguri Hospital and from there to North. Bengal Medical College and Hospital at Siliguri where he was operated upon. The victim, however, died in the morning on 15th June, 2002. The accused was charged under Section 304(1) of the Indian Penal Code and has subsequently been convicted as has been already indicated above.

P.W.I, de facto complainant, in his evidence deposed as follows:

The incident tool, place on 14.6.2002 in the afternoon at about 4/4.30 p.m. in front of a chowmin shop situated near Bhavani Video Hall of Birpara. ...All on a sudden Bikram Dorjee came at here and assaulted Santosh Dorjee by a knife in his belly in my presence. Seeing the same I rushed away from the P.O. out of fear thinking that he might assault me. I informed the matter to his parents.

3. The written complaint was scribed by PW.7, Nukul Sonar. He has proved his handwriting and his signature in the written complaint which has been marked as Exhibit 4. P.W.I has identified his signature on the written complaint which has been marked Exhibit 1.

4. PW. 2 Sushil Roy, owner of ghoognee/chowmin shop, deposed that on 14th June, 2002 at about 4.30 p.m. in front of his shop, a person was stabbed. The victim was a Nepali. P.W. 2 turned hostile. He was suggested, in cross-examination on behalf of the prosecution, made by permission of Court, that he had told the police that the accused Bikram Dorjee had stabbed the victim Santosh Dorjee whereafter the local people had removed the victim to Birpara Hospital which he denied. P.W.3. Sarat Sarkar, a shop owner-situate in the vicinity of the place of occurrence deposed as follows:

The incident took place on 14.6.2002 at about 4.30 p.m. by the side of my shop. I was busy in my shop for some work and hearing a hue and cry I came out of my shop and found someone lying being injured by stabbing. I found another man running away with knife in his hand towards Dharmasala. The victim was a Nepali young man and the man who fled away was seen by me from the back side. Over the incident I was examined by the police and I stated the facts as I stated before Court today. I did not try to know the name of the accused. I arranged for removing the victim to hospital by a rickshow with some men. Later on I heard that the assaulted victim died in the hospital.

5. P.W. 4 Bindeswar Mondal, another hostile witness deposed as follows:

The incident took place on 14th June but the year is not remembered. It was 4.30 to 5 p.m. when the incident took place in front of one chowmin shop at Din Bazar, Birpara. I am an employee of a cloth shop and I was working there. I heard a hue and cry and found one man running away towards Dharmasala and I found also another man standing with injury in his belly. I do not know the person injured or the assailant.

6. In his cross-examination by the prosecution, he was suggested that he had told the police that in front of the ghoognee shop the victim-Santosh had been stabbed by the accused Bikram which he denied.

7. P.W.5 Kalu Dorjee, father of the deceased, deposed that 'The incident took place on 14.6.2002 in front of a chowmin shop near Bhavani Video Hall at Birpara Bazar. Sankar Dorjee informed me that my son was stabbed by Bikram Dorjee. Hearing the incident 1 went to hospital along with Sankar to Birpara Hospital wherefrom he was referred to Jalpaiguri Hospital and I accompanied him to Jalpaiguri. Then they again referred the case to Siliguri Medical College & Hospital. On 15.6.2002 my son died at Siliguri Hospital at about 8.30 a.m. in morning. I know Bikram Dorjee who is present in Court now (identified). I saw my son for the first time after injury at Birpara Hospital.'

8. P.W. 6, Ganga Prasad Prodhan a pane hay at member and health executive deposed that the victim was brought to the Birpara Hospital at about 5.00 p.m. on 14th June, 2002 by one Deoraj Prodhan. P.W. 6 was told that Bikram had stabbed the victim. P.W.6 arranged for sending the victim to North Bengal Medical College and Hospital.

9. From the evidence discussed above, the fact that the incident took place in front of ghoognee/chowmin shop run by the P.W. 2 on 14th June, 2002 at about 4.30 p.m. is well proved. The fact that the accused Bikram stabbed the victim Santosh is proved by the evidence of the P.W.I which has a ring of truth and is reliable. The contents of the written complaint corroborate his evidence. Further assurance in this regard is lent by the following facts and circumstnees.

10. On 15th June, 2002 the accused was arrested. On the basis of information furnished by the accused, the offending weapon was seized by the police. P.W. 6 is also a seizure witness. His evidence, in this regard, is as follows:

Later on the police officer seized the knife being shown by Bikram from his uncle's house from Saradapally. The place of seizure was shown to the police officer by the accused who took out the knife from the house of his uncle. I signed on the seizure list. This is my signature. Nakul Sonar also signed in my presence. This is my signature Exhibit 3. The chaku was about 8 inches. This might be the knife seized in my presence. I know the accused Bikram Dorjee who is present in Court (identified).

11. P.W.7. Nakul Sonar, another seizure witness deposed in this regard as follows:

I went to the PS along with Sankar Dorjee and the Officer-in-Charge of the PS took me to a place wherefrom the accused Bikram Dorjee took out the weapon being a knife. Police officer seized the knife. I signed in the said seizure list made by the police officer. This is my signature Exhibit 5. The accused, Bikram Dorjee, is present in Court (identified). One knife was shown to the witness and he identified the same stating that the same was the knife seized in his presence by the police officer Mat Exhibit (objected to).

12. As regards arrest of the accused and seizure of the offending weapon, the Investigating Officer, P.W.9, deposed as follows:

I arrested the accused on 15.6.2002 and forwarded him before the SDJM, Alipurduar. I seized the weapons of the offence from accused Bikram Dorjee who handed over the same to me. This is the said seizure prepared by me in respect of the seizure of weapons. The seizure list was prepared in own handwriting with my signature Exhibit-11. The weapon of offence was kept hidden in a plastic cement bag and the same sack was seized in the same seizure list. This is the said knife and the bag. The bag is Mat. Exhibit 2.

13. In his cross-examination, the Investigating Officer P.W.9, deposed as follows:

During investigation I came to know that there was dispute between the families of the victim and the accused. During seizure of the weapon of offence I observed all formalities. I did not label the weapon and the bag.

14. The post-mortem report marked Exhibit 12 goes to show that three injuries were found on the person of the deceased. According to the opinion of the autopsy surgeon appearing from the post-mortem report death was caused due to the effect of the injuries mentioned therein.

15. Based on the evidence discussed above, we have no manner of hesitation to hold that the case of the prosecution has been established beyond any reasonable doubt.

16. Mr. Partha Sarathi Bhattacharyya, the learned Advocate appearing in support of the appeal, submitted.

(a) that there is an allegation in the written complaint as regards enmity between the parties as regards which the P.W.I did not utter a word.

(b) That the offending weapon seized by the police did not contain any identification mark.

(c) Evidence goes to show that the police station was within five minutes walking distance from the place of occurrence but the written complaint was not lodged until the following day.

17. He submitted that these circumstances go to establish that the case of the prosecution has not been proved beyond reasonable doubt. We are unable to accept any of these submissions. It would appear from the written complaint that the cause of alleged enmity is the married aunt of the victim. The family of the victim has already lost a young member. The family could illafford to earn a further stigma on a female member of the family. In order to avoid any stigma being attached to the female member of the family, the de facto complainant may have refrained from referring to the cause which he narrated in the written complaint. The enmity disclosed in the written complaint would strengthen the case of the prosecution rather than weakening it. Therefore, the omission on the part of the P.W.I to depose anything with regard thereto cannot be treated as a weakness in the case of the prosecution. On behalf of the defence, the Investigating Officer was cross-examined on this point. He deposed that there was an enmity. We have quoted above the relevant part of the deposition. We therefore do not see how does the first point help the accused.

18. It is true that the offending weapon, seized from the house of the uncle of the accused, did not contain any label or mark of identification but that at the highest is a lapse on the part of the investigating agency on the basis of which a well-founded case cannot be thrown overboard. Sight cannot also be lost of the fact that on the basis of the information furnished by the accused, the offending weapon was seized, from the house of a near relation of the accused which was lying concealed.

19. The submission that there has been any delay in lodging FIR is equally unfounded. Evidence of the P.W.I is 'I accompanied father of Santosh to Jalpaiguri Hospital. Santosh was later transferred to Siliguri Medical College where he was operated and the next day he died. Over the incident I lodged a petition of complaint in the Birpara PS and the petition of complaint was written by Nakul Sonarwar as per my statement and I signed on the same.' It is only natural that all energy was devoted to saving the life of the deceased. P.W.I accompanied the victim and his father from hospital to hospital. After the victim died within hours, the written complaint was lodged. Sight cannot also be lost of the fact that the P.W.I, the de facto complainant, had to come to Birpara from Siliguri to lodge the written complaint. We, therefore, are unable to see any delay in lodging the FIR. All the points urged by Mr. Bhattacharyya have thus been dealt with.

20. Lastly, Mr. Bhattacharyya submitted that the case was one under Section 304 Part I of IPC and therefore, this Court should consider the question of punishment. The sentence inflicted by the learned Trial Court according to him, is harsh and disproportionate which should adequately be stepped down.

21. The learned Trial Judge in his judgement has advanced the following reasons for inflicting the punishment he did:

Having heard the submission of the convict Bikram Dorjee and keeping in mind the brutality of the nature of offence wherein he killed his neighbour Santosh Dorjee being young like him in his helpless condition in broad day light in presence of so many people in the market place at Birpara and considering such ferocious act on the part of the convict this Court thinks imprisonment for life with fine of Rs. 5,0007-ID to suffer further imprisonment for one year would be sufficient and justified in this case for committing the offence under Section 304(1) of IPC.

22. The accused in execution of a premeditated plan attacked a unarmed person while he was or about to take ghoognee in front of a cinema/video hall. The accused knew that the injuries inflicted upon the vicim in all probability would cause death or the iniury was likely to cause death and he did so without any excuse. The accused is a dangerous element and is also a threat to the society. We, therefore, are unable to interfere with the judgment and order passed by the learned Trial Court.

23. For the reasons discussed above, the appeal is dismissed.

Let a copy of the judgment along with the Lower Court Records be sent down to the concerned learned Trial Court forthwith for information and necessary action.

Urgent xerox certified copy of this judgment, be made available to the learned Advocates for the parties, if applied for, upon compliance of all formalities.

Partha Sakha Datta, J.

I agree.