Partly allowed

Sandip Bhowmick v. State of West Bengal

Calcutta HC24 Nov 2021CRA/113/2021

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a conviction for murder. The bench held that while death was caused by abdominal injuries, the act was an unpremeditated fit of passion, warranting conviction under Section 304 IPC instead of Section 302.

What did the court decide?

The conviction under Section 302 IPC was altered to Section 304 Part 1 IPC and the sentence was reduced to ten years rigorous imprisonment.

Sandip Bhowmick Vs State of West Bengal — Murder and Culpable Homicide | Calcutta HC (2021)

¶1

Item No. 45

¶2

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

¶3

Present:

¶4

The Hon’ble Justice Joymalya Bagchi

¶5

And

¶6

The Hon’ble Justice Bivas Pattanayak

¶7

C.R.A.113 of 2021 Sandip Bhowmick -VsState of West Bengal

¶8

For the Appellant	:	Ms. Sreyashee Biswas
For the State	:	Ms. Anasuya Sinha Mr. Pinak Kumar Mitra
Heard on	:	24^thNovember, 2021
Judgement on	:	24^thNovember, 2021

¶9

Joymalya Bagchi, J. :-

¶10

The appeal is directed against the judgment and order dated 30.07.2019 and 31.07.2019 passed by the learned Additional District & Sessions Judge, Chandernagore, Hooghly in Sessions Trial No. 52 of 2016 arising out of Sessions Case No. 103 of 2016 convicting the appellant for commission of offence punishable under Section 302 of

¶11

¶12

the Indian Penal Code for life and pay a fine of Rs.10,000/- , in default to suffer further rigorous imprisonment for a period of three months for the offence under Section 302 of the Indian Penal Code.

¶13

Prosecution case, as alleged, against the appellant is to the effect that the appellant was married to the deceased Arpita Bhowmick pursuant to the negotiations according to the Hindu Rites and Customs in the month of January, 2006. The couple were blessed with two children – Bristi who was examined as P.W. 5 and a son, named Bittu. The appellant used to work in a jewellery shop in Surat and would visit his residence at Tarakeswar off and on where the family permanently resided. It is alleged during such visits the appellant misbehaved with his wife. Twenty five days prior to the incident the appellant had returned from Surat. On the fateful night between 11^th /12^th April, 2016 the appellant returned home late and called upon his wife to open the door. As Arpita was late in opening the door, he kicked her abdomen. Consequently, Arpita suffered pain and felt unwell. She was treated by a local quack (PW 9). On the next day as her condition deteriorated she was shifted to Tarakeswar Rural Hospital where she was treated by doctor Aninda Parbat (P.W. 13). Arpita finally breathed her last at 9.15p.m. on 12.04.2016 in the said hospital.

¶14

On the written complaint of Panchanan Bera (P.W. 1), father of the victim lady, Tarakeswar P.S. Case No. 116 of 2016 dated 13.04.2016

¶15

¶16

under Sections 498A/302/120B of the Indian Penal Code was registered against the appellant and his father Sukumar Bhowmick.

¶17

In conclusion of investigation, charge sheet was filed in the instant case and case was committed to the Court of the Additional District & Sessions Judge, Chandernagore, Hooghly for trial and disposal. Charges were framed against the appellant and Sukumar Bhowmick under Sections 498A/302/120B of the Indian Penal Code. In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents. Defence of the accused persons was one of innocence and false implication. In conclusion of trial, trial judge by judgment and order dated 30.07.2019 and 31.07.2019 convicted and sentenced the appellant, as aforesaid. By the selfsame judgment and order, however, co-accused Sukumar Bhowmick was acquitted of the charges levelled against him.

¶18

Ms. Shreyashee Biswas, learned advocate appearing for the appellant argues the cause of death of Arpita has not been proved beyond reasonable doubt. Post-mortem doctor (PW11) reserved opinion on the cause of death awaiting viscera report and report of heart analysis. It is further argued that the prosecution had failed to prove that the alleged assault on the victim had resulted in her death. Accordingly, she prays for acquittal.

¶19

¶20

Ms. Anasuya Sinha, learned advocate appearing for the State in support of the conviction contends that the daughter of the couple (PW5) has unequivocally stated that the appellant had repeatedly kicked the victim in the abdomen. Evidence of the Medical officer who treated the deceased at Tarakeswar Rural Hospital shows that her abdomen was tensed and diffused which was due to internal organ injury. Soon thereafter, she suffered cardiac arrest and died. She also draws our attention to the opinion of the post-mortem doctor (Exhibit 8) who upon considering the viscera report opined the victim. Thus, the homicidal death of the victim has been clearly established.

¶21

In view of the aforesaid submissions made at the Bar, at the outset, it is necessary to examine whether the deceased suffered homicidal death or not.

¶22

PW5, Brishti Bhowmick is the daughter of the couple. She is a minor and was a student of Class IV when she was examined. Accordingly, the trial court examined her competence and upon being so satisfied recorded her deposition. In her deposition, Brishti stated that her father is engaged in jewellery work at Surat. 20-25 days prior to the incident, her father had returned home. On the fateful night around 1:00/2:00 A.M., her father called out to open the door. She and her mother went to open the door. Her mother was a bit late in opening the door. Immediately on opening the door, her father kicked her mother in

¶23

¶24

the abdomen. She was pushed aside. Her second aunt and grandmother also came to the spot and tried to restrain her father. Her aunt and grandmother took her mother to the room. Her mother suffered pain in the abdomen. They applied coconut oil with water. In the morning her father brought medicine from the local doctor. In the evening her mother was taken to the hospital where she died. She made statement before the Magistrate.

¶25

In cross-examination, she admitted that her father had taken her and her mother to Surat on earlier occasions. Her father loves her and her brother. He also loves their mother a little. After the death of her mother, her father visited her at her maternal uncles’ house once or twice. Her father took her brother to her maternal uncles’ house for bhai phonta . She stated that at times her mother had colic pain and consulted doctor.

¶26

PW5, Brishti is the only eyewitness to the incident. PW1 (Panchanan Bera) is the father of Arpita (the victim), PW3 (Debasish Bera) is her brother and PW6 (Madhumita Sasmal) is her sister. None of these witnesses were present at the spot and do not throw any light with regard to the incident immediately prior to her hospitalisation. However, the evidence of Brishti finds corroboration from the deposition of PW9 (Pravat Samanta) who stated that he is a local doctor and the appellant had informed him that his wife was suffering from diarrhoea. He visited

¶27

¶28

the patient and found that she was having breathing trouble and was too ill to speak. He advised the patient to be shifted to hospital.

¶29

PW13, Aninda Parbat examined the victim at Tarakeswar Rural Hospital and his evidence with regard to the cause of death is very vital. He stated the patient had been brought to the hospital at 8:50 P.M. on 12^th April, 2016 with a history of fall from the staircase and injury in her abdomen as stated by her husband and mother-in-law. On examination, he found the general condition of the patient very poor. She had pallor. He also found sub-conjunctival haemorrhage in both the eyes. He noticed scratch mark on the left side of the neck. Her abdomen was tensed and diffusely tendered. She was suffering from shortness of breath. He advised her to be referred to a better hospital. On further enquiry her husband admitted that he kicked her on the abdomen on the previous day. Patient expired at 09:15 P.M. He proved the bed-head ticket (Exhibit-9).

¶30

In cross-examination, he stated tense distension may occur due to internal organ injury or infection.

¶31

The post-mortem doctor was examined as PW11. He found abrasion 1 x ½ centimeter over left cheek prominence, haematoma over frontal prominence with blackish eye. He reserved his final opinion regarding cause of death pending receipt of chemical examination of viscera and heart. He proved the post-mortem report (Exhibit-4).

¶32

¶33

It may be pertinent to note that viscera report was placed on record in the course of trial and admitted into evidence. Viscera report did not record any poison.

¶34

Upon receipt of viscera report, post-mortem doctor, P.W.11 had given his opinion with regard to cause of death as follows:

¶35

“…after obtaining the viscera report it seems that the cause of death was due to shock from cardiorespiratory failure and the injuries as noted in post mortem report. Manner of causation may be determined from circumstantial evidence which may be homicidal in nature. ”

¶36

Such information was communicated to the investigating officer P.W.12 who proved it as Exhibit 8. From the evidence of Bristi, P.W.5 and the medical evidence on record particularly that of P.W.13, PostMortem report (Exhibit 4) and the final opinion of the post mortem doctor (Exhibit 8), I find no reason to doubt that the death was homicidal.

¶37

The next question, which I require to answer is who was responsible for her death.

¶38

As discussed earlier, evidence of the minor daughter P.W.5, clearly establishes the fact that the appellant had kicked on the abdomen of the deceased prior to her death.

¶39

It appears that the defence has suggested that she suffered injury due to the fall or distended condition of the stomach was due to infection.

¶40

¶41

Learned counsel for the appellant drew attention of this court to the cross-examination of P. W. 5 wherein she stated her mother was suffering from colic pain and consulted doctors to probabilise that the distended stomach was due to injury. I am unable to accept such contention. No evidence is forthcoming that on the fateful night, the victim was suffering from colic pain. On the other hand on an intense interrogation, the appellant had himself admitted before P.W.13 that he had kicked the victim in the abdomen.

¶42

Hence, I have no doubt in my mind that the victim had suffered injuries in the abdomen upon being kicked by the appellant and had ultimately expired.

¶43

However, from the factual matrix of the case, I note that there was no bad relation between the appellant and the deceased. Although there are stray sentences in the deposition of P.W. 1 and P.W.6 that the appellant used to ill-treat the victim when he returned from Surat, no contemporaneous complaint was lodged. On the other hand, crossexamination of P.W.5, the daughter of the couple shows that the appellant took care of their needs and had on earlier occasion taken her and her mother to Surat. PW 6 also deposed she did not know why the appellant had assaulted the victim.

¶44

It is also relevant to note that the charge under Section 498A of the Indian Penal Code has failed.

¶45

¶46

Thus the prosecution has singularly failed to prove the motive on the part of the appellant to murder his wife. Analysis of the evidence of P.W.5 daughter shows that the incident occurred at mid-night over an altercation relating to delay in opening the door of the house. The appellant had called upon the deceased to open the door at mid-night. There was some delay in opening the door this enraged the appellant and in a fit of passion he kicked the deceased.

¶47

The aforesaid facts and circumstances clearly show that the act of the appellant was without pre-meditation in the course of an altercation and wholly a fit of passion.

¶48

Hence, I am of the opinion that the conviction of the appellant requires to be altered from one under 302 to 304 part 1 of the Indian Penal Code.

¶49

In view of the aforesaid alteration, I reduce the sentence imposed on the appellant and direct that the appellant shall suffer rigorous imprisonment for a period of ten years and pay a fine of Rs.10,000/- in default, to suffer rigorous imprisonment for a period of three months more for the offence punishable under Section 304 Part 1 of the Indian Penal Code.

¶50

The appeal is allowed to the extent indicated above.

¶51

Period of detention, if any, undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive

¶52

¶53

sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.

¶54

Lower court records along with a copy of this judgment be sent

¶55

down at once to the learned trial court for necessary action.

¶56

Photostat certified copy of this order, if applied for, be given to the

¶57

parties on priority basis on compliance of all formalities.

¶58

I agree.

¶59

(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)

¶60

sdas/akd/basu/PA

Sandip Bhowmick v. State of West Bengal

Case brief

What is this about?

What did the court decide?

Sandip Bhowmick v. State of West Bengal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Aditya Birla Finance Ltd. Vs Pinnacle Edutional Trust Rep by Secy & Ors.

Sk Saifuddin Vs Sk Yamin and Ors.

Goutam Sarkar Vs Dipak Sarkar and Others

Mamon Sk @ Mondal Vs State of West Bengal

Sajahan Mia Vs State of West Bengal

Sahangir Molla @ Rana Vs State of West Bengal