BISHNUPADA SARKAR Vs. STATE OF WEST BENGAL

LAWS(CAL)-2010-7-52

HIGH COURT OF CALCUTTA

Decided on July 15,2010

BISHNUPADA SARKAR Appellant

VERSUS

STATE OF WEST BENGAL Respondents

JUDGEMENT

- (1.) FACTS :- This case relates to a most unfortunate incident where on a trifle issue the victim had to pay heavy cost by losing his life. The victim was a resident of Jagatdal. He was working as Income Tax Inspector at the relevant time. His son Debabrata Majumder, PW-1 as well as complainant was nineteen years of age. On May 21, 2001 at about 7.00 p.m. a person of the same locality (Sudhir) was found committing nuisance in the open drain in front of the house of the victim. Victim protested, an altercation took place between the victim and the concerned person. On the next day at about 11.30 a.m. the nephew of the said person, Bishnu Sarker came to the victim's house and threatened him. The victim said, he did not do anything wrong. He agreed to "sort it out". At 6.00 p.m. in the evening on the same day Madhai Sarker, brother of Bishnu Sarker called the complainant to the slab near the drain and started beating him. The victim was about to go to the market. He intervened and tried to save the complainant. Madhai then left the complainant and started beating the victim with fists and blows. Bishnu was standing beside and instigating him. Complainant cried for help. The local people rushed to the place and took the victim to Kalyani Hospital where the victim succumbed to the injury shortly. Complainant lodged a complaint on the same day with the local Police Station. The Police conducted the inquest and arrested both the accused. The Inquest Report supported the complaint. The officer however recorded that Shyamlendu Majumder the victim, fell on the ground and was hit by an unbroken brick lying beside the road. The Post Mortem Report suggests that the death was unnatural, anti mortem and homicidal in nature. Five injuries were found which includes injury at the occipital region of the scalp. The accused pleaded not guilty and opted to be tried.
(2.) PROSECUTION EVIDENCE :- PW-1 (Debabrato Mazumder) :- PW-1 deposed that Bisnu and Madhai started assaulting him at random with fists and blows. When his father tried to save him the persons pounced upon him. Both of them assaulted Shyamlendu Mazumder with fists and blow and hit his father on the head with brick more than once. There had been injuries on eyes, nose and other parts of the face causing bleeding. Bisnupada was a business man whereas Madhai was a part-time worker in a factory. The complainant, for the first time, disclosed the name of the person being the villain of the peace Sudhir Sarkar who had committed nuicence on the day prior to the incident. According to him, when his father protested Sudhir abbused him. Sudhir was uncle of Bisnu and Madhai. He deposed that his father was in standing position when his neck was pressed by the accused and the accused person assaulted him with the help of brick applied to his head, nose, face and other parts of the body. In cross-examination he admitted that he did not mention in the complaint that Bisnu assaulted him or his father or they pressed his father's neck or that brick was used to hit his father. He also did not mention the name of Sudhir in the FIR. He deposed, "I failed to give the details due to my mental condition" PW-2 (Dipali Mazumder) :- The witness was the widow of the unfortunate victim and mother of PW-1. She corroborated PW-1 and added that she was called by Chaya Banerjee, her sister in-law who was then sitting in the balcony of the house. Both of them went to the spot and tried to save the victim but failed. Bisnu was watching the incident from a distance. The witness along with her companion raised alarm when the victim came to the spot. He asked Madhai to refrain from assaulting PW-2. Madhai and Bisnu then attacked the victim conjointly by fists and blows at random on his face, nose and various parts of his upper body. Both of them used a brick to cause injury on his head. One did catch hold of the victim and the other inflicted the brick blow. She also referred to the earlier incident relating to Sudhir as also the subsequent threatening given by Bisnu. She identified both the accused on dock. She deposed that she had narrated the incident in detail to the Investigating Officer but was not aware of whether the Investigating Officer had written each and every detail spoken by her. PW-3 (Samir Mazumder) :- The witness was the cousin brother of PW-1 and nephew of the victim. He corroborated PW-1 and 2 on the incident. PW-4 (Bimal Mazumdar) :- Bimal was the uncle of PW-1 and brother of the victim. He also corroborated the other witnesses on the incident. PW-5 (Chaya Banerjee) :- She was the sister of the victim, she watched the incident from the balcony and then came to the spot to save the PW-1 but failed. She also narrated the incident how the victim had been assaulted by the accused. She accompanied the victim in the ambulance. PW-6 (Tapan Kumar Chowdhury) :- He was a neighbour and feigned ignorance about the incident. He was declared hostile. He deposed that he did not know how the victim had died. PW-7 (Swati Banerjee) :- She was the Investigating Officer. She prepared the Inquest Report. PW-8 (Sudhansu Biswas) :- He was the Assistant Sub-Inspector of Police at Jagatdal Police Station. He received the written complaint from PW-1 and registered the same as P.S. Case No.120 dated May 22, 2001, under Section 304/34 of the Indian Penal Code. PW-9 (Tapan Dey) :- He was the Ward Master of the hospital where the victim was treated. PW-10 (Dr. R. Alam) :- Dr. Alam conducted the Post Mortem Examination. He supported his report. According to him, there were five injuries on the scalp, eye-brow, occipital region of the scalp, wrist and left middle finger. According to him, the death was anti-mortem and homicidal in nature caused by the above injuries. He opined that the brick bat blow might cause some of the injuries found on the person of the deceased. Initially the Post Mortem was conducted by a doctor who happened to be the father in-law of the victim. It was re-examined by PW-10. According to him, death was due to injuries sustained by the victim. PW-11 (Biswanath Ghosh) :- He was the Sub-Inspector of Police working at Jagatdal Police Station. He was entrusted with the investigation on June 11, 2001 when he took up the charge of investigation. He collected the Post Mortem Report and submitted chargesheet. PW-12 (Nepal Sarkar) :- He was a police constable. He escorted the deadbody for Post Mortem Examination. PW-13 (Subit Kumar Roy) :- He was a Sub-Inspector who conducted the initial examination. He narrated in detail about the investigation conducted by him prior to June 11, 2001.
(3.) DEFENCE WITNESS :- DW-1 (Pravat Kumar Paria) :- Defence Witness being DW-1, Pravat Kumar Paria, was an employee of Tyre Corporation of India. The witness produced the Attendance Register to show that on May 22, 2001 Bisnu Sarkar was working at the factory between 2 a.m. to 9.30 p.m. In cross-examination Mr. Paria deposed that Bisnupada was working as a labour under a labour contractor Mrinal Sarkar. Mrinal was not an employee of Tyre Corporation. It was his (Mrinal) responsibility to maintain the attendance of his employees. N.S.L. Card was not required to be punched. If any labour intended to quit he would have to collect the card and meet the Production Officer. He also deposed that the time of departure was not noted in the register. He also deposed that the Attendance Register did not mention the timing of the shift.;

Click here to view full judgement.