Full Judgment Text
Crl.A. 2129 of 2009 REPORTABLE
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2129 OF 2009
SWAPAN KUMAR SENAPATI ..... APPELLANT
VERSUS
STATE OF WEST BENGAL ..... RESPONDENT
O R D E R
1. We have heard the learned counsel for the parties.
nd
2. On the 22 July, 1992 at about 11:00a.m. Satkari
Senapati, hereinafter referred to as the deceased, aged
about 76 years was assaulted by his nephew Swapan Kumar
Senapati, the appellant herein, in the presence of,
amongst others, P.W. 3 and P.W. 7, the wife and servant
of the deceased. As a consequence of the attack, a
First Information Report was registered at the Police
th
Station, on the 25 July, 1992, under Sections 341 and
325 of the IPC. In the First Information Report, it was
stated that the relations between the parties were
strained on account of some litigation and that the
appellant had attacked the deceased, had sat on his
chest, and had hit him on his head with a stone. It
appears that the condition of the deceased deteriorated
th
on the 25 of July, 1992 and though he was taken for
treatment to several hospitals, he ultimately died. The
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dead body was subjected to a post mortem examination and
it was noted that there was no external injury on the
dead body and that the death had been caused by intra
cranial and extra cerebral haemmorhage in the brain.
3. The trial court on a consideration of the evidence
of P.Ws. 3 and 7, (the other eye witnesses having been
declared hostile), found that the prosecution story
could not be believed. The trial court, accordingly,
acquitted the appellant. The High Court, has, in
appeal, reversed the judgment of the trial court and
relying on the evidence of P.Ws. 3 and 7 as also the
medical evidence has convicted him under Section 304
(II) of the IPC and sentenced him to seven years
rigorous imprisonment. It is in this situation that the
matter is before us after the grant of special leave.
4. We have heard Mr. Pradip Ghosh, the learned Senior
Counsel for the appellant and Mr. Satish Vig, the
learned counsel for the State of West Bengal.
5. Mr. Ghosh has first argued that the statements of
P.Ws. 3 and 7 could not be believed as they were
interested witnesses and as the incident had happened in
the middle of a local street, the prosecution should
have produced some independent witnesses from that
location. He has further argued that the medical
evidence did not support the ocular version and that in
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any event a case under Section 304 (II) of the IPC was
not made out and if at all the conviction ought to have
been recorded under Section 325 thereof.
6. Mr. Satish Vig has, however, supported the
judgment of the High Court.
7. We have absolutely no reason to doubt the presence
of P.Ws. 3 and 7. Although there appears to be some
delay in the lodging of the FIR, this can be explained
by the fact that the dispute was within the family and,
initially, in the absence of any external injury, it did
not appear that any serious damage had been caused to
the deceased and it was only after his condition had
declined rapidly that the First Information Report had
been lodged. We also see that in a family dispute
independent witnesses are reluctant to come forward to
give evidence. We, however, feel that in the facts of
the case the conviction under Section 304 (II) was
wrong. We have gone through the evidence of P.W. 8 Dr.
Bibhuti Baran Senapati who had conducted the autopsy on
the dead body. He found a bilateral peri orbital
haematoma on the opening of the skull and no external
injury was present. He also noted that the cause of
the death was intra cranial haemmorhage. When cross
examined the doctor deposed that if somebody was hit by
a stone or hard substance it was likely that there would
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be some external injury. Likewise, P.W. 9, Dr. Murari
th
Mohan Kumar who had examined the deceased on the 24
July, 1992 emphatically stated that there was no
external injury on the head and if there had been one it
could have been detected by a CT scan. It has also come
in the evidence of P.W. 3 that after the appellant had
sat on the chest of her husband he had held his head and
repeatedly hit it against the ground. It appears,
therefore, that the injuries caused were apparently not
with a stone but it was the concussion and the rough
handling by the appellant that had led to the internal
injury to the brain which had resulted in haematomal
haemmorhage and then to death. We are, therefore, of
the opinion that the matter would fall squarely under
Section 325 of the IPC. We are told that the appellant
has undergone about two years of the sentence. We feel
that the ends of justice would be met if the sentence is
reduced from seven years to that already undergone by
him.
8. The appeal stands disposed of in the aforesaid
terms.
........................J
[HARJIT SINGH BEDI]
Crl.A. 2129 of 2009 REPORTABLE
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........................J
[CHANDRAMAULI KR. PRASAD]
NEW DELHI
FEBRUARY 24, 2011.