Item No. 42 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Joymalya Bagchi And The Hon’ble Justice Gaurang Kanth C.R.A. (DB) 311 of 2024 Bikash Dolai Vs. The State of West Bengal & Anr. For the Appellant : Mr. Jayanta Narayan Chatterjee, Sr. Adv., Mr. Sourat Nandy, Adv. For the State : Mr. Subhomay Bhattacharya, Adv., Ms. Debjani Sahu, Adv. Heard on : 04.03.2025 Judgment on : 04.03.2025. Joymalya Bagchi, J. :- 1. On consent of the parties, appeal is taken up for hearing. 2. Appellant has assailed judgment and order dated 24.07.2024 and 25.07.2024 passed by learned Additional Sessions Judge, 1st Court, Tamluk, District-Purba Medinipur in S. T. Case No.74 of 2022 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for three months more. 2 Prosecution case: 3. Prosecution case as alleged against the appellant is as follows:- One Tushar Kanti Singha (deceased) was the Secretary of village- Uttar Pally of village-Tikarampur; there was a long standing dispute between Tusar on one hand and appellant and his associates on the other hand. On 08.01.2022 around at 8.30 AM the accused persons being armed with ‘lathi’, ‘katari’ and ‘hansua’ restrained Tusar while he was returning home and abused him in filthy languages; an altercation ensued and accused assaulted him with lathi and wooden battam on his head. Tusar raised hue and cry and his son Debendra Singha (PW 1) and others arrived at the spot. They took the victim to Purba Medinipur District Hospital where he was declared dead. PW 1 lodged written complaint resulting in registration of Nandakumar Police Station Case No.09 of 2022 dated 08.01.2022 under Sections 302/34 of the Indian Penal Code against the appellant and seven others. 4. In conclusion of investigation, charge sheet was filed and charge was framed against the appellant and seven others under Sections 302/34 of the Indian Penal Code. They pleaded not guilty and claimed to be tried. In course of trial prosecution examined seven witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. 5. In conclusion of trial, the trial Judge by the impugned judgment and order dated 24.07.2024 and 25.07.2024 convicted and sentenced the appellant, as aforesaid. Other accused were acquitted of the charge. 3 Arguments at the Bar: 6. Mr. Jayanta Narayan Chatterjee, learned Senior Advocate submits the trial Judge failed to appreciate the version narrated by PWs 2 and 3, the eyewitnesses is at variance to the genesis of the assault narrated in FIR by PW 1. Even if PW 2 is believed, it appears incident occurred in course of a sudden fight and appellant did not have intention to commit murder. Accordingly, he prays for acquittal. 7. Mr. Bhattacharyya with Ms. Sahu on the other hand submits PWs 2 and 3 are reliable eyewitnesses. Their ocular version is corroborated by medical evidence. Appellant had suddenly hit the victim with a wooden battam i.e. log on the head. As a result, victim died. Intention to commit murder is evident. Evidence on record: 8. We have considered the evidence on record in light of the submissions made at the Bar. 9. PW 1 (Debendra Singha) is the de-facto complainant. He is a reported witness. He stated his father told him appellant had hit him with a wooden battam resulting in injuries. 10. PW 2 (Prasanta Kumar Dolui) and PW 3 (Aparna Dhabak) are the eyewitnesses. PW 2 deposed an altercation had taken place between one Sanjoy Mujrai and Tusar Kanti Singha over the issue of keeping of keys of the house. On the fateful day i.e. 08.01.2022 he was returning with Tusar. At that time Akash, son of the appellant caught hold of his collar and pushed him. An altercation ensued between him and Akash. When the 4 tension was deescalating Bikash suddenly came from behind and hit Tusar with a wooden battam on the head. As a result, he suffered bleeding injuries. He was taken to hospital and declared dead. 11. PW 3 corroborates PW 2. She states when Tusar and PW 2 were returning home, Bikash and others restrained them. There was an altercation. At that time Bikash hit Tusar with a wooden battam. 12. The aforesaid eyewitnesses find corroboration from the post mortem doctor (PW 6). He found the following injuries on the deceased:- “1) Extra vassion of blood 9 inches x 9 inches diffused over fronto parito- temporo-occipital region of scalp; 2) One fissure fracture 1 inches in length present over both tables of right temporal bone and 3) Sub-dural hemorrhage with blood cot present over both cerebral hemisphere.” He opined death was due to effect of injuries and ante mortem in nature. 13. PW 7 (Rahamatulla Khan) is the Investigating Officer. He deposed during investigation he had arrested the appellant. He seized split bamboo. He proved the seizure list (Ext.P 2). 14. During trial a wooden battam measuring 3 feet X 5 inches was produced in court. Analysis & findings:- 15. From the aforesaid evidence on record, it appears there was a long standing dispute between appellant and his family members on one hand and Tusar, the deceased on the other hand. On 08.01.2022 Tusar was proceeding towards his residence with Prasanta (PW 2). At that time Akash, 5 the appellant’s son accosted Prasanta. An altercation ensued. When they were dispersing appellant hit Tusar with a wooden battam on the head. PW 2’s version is corroborated by PW 3. Post mortem doctor (PW 6) also notes death was due to injuries caused due to assault by a hard substance. 16. In light of the evidence on record, it has been proved beyond doubt in course of altercation appellant had hit Tusar on the head with a hard object resulting in injuries and ultimate death. 17. Whether the act of the appellant could constitute murder is the moot question. 18. Trial Judge disbelieved that the incident occurred in course of a sudden quarrel and appellant had acted in a fit of passion. He opined due to prior enmity appellant and others had accosted the victim and the appellant had hit him with a wooden battam on the head. 19. We are unable to subscribe to this view. Consistent evidence on record of the eyewitnesses PWs 2 and 3 shows owing to prior enmity a sudden quarrel had erupted between the two groups. Initially appellant’s son had accosted PW 2. When they were dispersing appellant suddenly hit Tusar on the head resulting in bleeding injuries. A sudden quarrel giving rise to a fit of passion is a natural instinct. Trial judge ignored the evidence of PWs 2 and 3 that there was altercation between PW 2 and appellant’s son at the time of the incident which may have prompted the appellant to act under a fit of passion and hit Tusar on the head. 6 20. The aforesaid factual circumstances emerging from the prosecution evidence clearly establishes the appellant is entitled to the benefit of 4th exception to Section 300 of the Indian Penal Code. 21. It is also pertinent to note that the injury caused on the victim may not fall within the third clause of Section 300 of the Indian Penal Code as recorded by the trial Judge. Post mortem doctor (PW 6) does not opine injuries inflicted on the victim were sufficient in ordinary course of nature to cause death. In absence of such opinion, it would not be correct to hold any head injury would attract the aforesaid clause. 22. Finally, with regard to the weapon of offence we note a wooden battam was produced in court (Mat Ext. 1). But the article had not been identified by eyewitnesses PWs 2 and 3 as the weapon of offence. On the other hand, Investigating Officer (PW 7) deposed he had seized split bamboo and not a battam as the weapon of offence. 23. In these circumstances though we have no doubt appellant had used a hard blunt substance to assault the victim on the head causing fatal injuries, whether the wooden battam measuring 3 ft. X 5 inches (Mat Ext. 1) was the weapon of offence, cannot be said to have been proved beyond doubt. Conclusion:- 24. In light of the aforesaid discussion, we are inclined to alter the conviction of the appellant from Section 302 to Section 304 Part I of the Indian Penal Code. 7 25. Consequentially, the sentence of the appellant is modified. He shall suffer rigorous imprisonment for ten years and to pay of Rs.10,000/-, in default, to suffer simple imprisonment for three months more. 26. Appeal is accordingly allowed to the aforesaid extent. Connected application, if any, stands disposed of. 27. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure/ Section 468 of the Bharatiya Nagarik Suraksha Sanhita, 2023. 28. Let a copy of this judgment along with the trial court records be forthwith sent down to the trial court at once. 29. Photostat certified copy of this judgment, if applied for, shall be made available to the appellants upon completion of all formalities. I agree. (Gaurang Kanth, J.) (Joymalya Bagchi, J.) as/samir/PA