As regards discrepancy, when the judgment is confronted with discrepancies in evidence on record, it does not necessarily demolish testimony: Calcutta High Court

 IN THE HIGH COURT AT CALCUTTA Criminal Appellate Jurisdiction Before: The Hon’ble Mr. Justice Shivakant Prasad CRA 7118 Via video conference Sri Sukumar Mondal The State of West Bengal & Anr For the appellant Mr. Suman Das For the State Mr. N.P. Agarwala Mr. Iqbal Kabir Mr. Pratick Bose Judgement delivered on Shivakant Prasad J. instant appeal is directed against the judgment dated 09.10.2018 and order dated 10.10.2018 respectively passed by the Additional Sessions Judge Kalyani Nadia in connection with Sessions Trial No. 02(07)16 corresponding to Sessions Case No. 07(10)15 thereby convicting the appellant for commission of offence under Sections 324 307 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years with a fine of Rs.10 000 in default to suffer simple imprisonment for a term of three month for the offence under Section 324 of the Indian Penal Code and further rigorous imprisonment for a term of seven years with a fine of Rs.20 000 in default to suffer simple imprisonment for a term of six months for the offences under punishable under Section 307 of the Indian Penal Code Brief facts leading to the instant appeal is that based on the complaint of one Sankari Sarkar Chakdaha Police Station being Chakdah P.S. Case No. 2615 dated April 17 2015 under Sections 326 307 of the Indian Penal Code was registered and investigation took place Prosecution case is that on April 17 2015 the de facto complainant namely Sankari Sarkar and her sister namely Basanti Mondal went to Chakdaha Market by train for purchasing gift items and marriage articles for Basanti Mondal’s daughter’s marriage and they decided to invite the appellant and at about 7.30 a.m. they reached to the house of the appellant and saw that he was cooking. Then the de facto complainant proposed to cook for the appellant and the appellant agreed on her proposal. Then the appellant prepared glucose water for the de facto complainant and Basanti Mondal in two mugs. On request when the said Basanti Mondal sipped it she felt bitter taste of the drink. On being asked the appellant assured that it was a good drink for them and also told that after drinking it they would feel better but after consuming such glucose water the de facto complainant lost her sense in the kitchen. When she regained her senses she heard hue and cry and found Basanti’s body lying in a pool of blood and her intestine was gushing out of abdomen and it was muffled around the neck and the appellant was not found there However the de facto complainant somehow managed to shift Basanti to the JNM Hospital Kalyani Nadia with the assistance of the local people After conclusion of the investigation the Investigating Officer submitted charge sheet no. 5915 dated 14.09.2015 under Sections 326 307 of the Indian Penal Code. After the case was committed to the Court of sessions the learned Sessions Judge took cognizance and transferred the case to the Court of learned Additional Sessions Judge Kalyani for trial and disposal. The trial started with the framing of charge under Sections 326 307 of the Indian Penal Code against the appellant who abjured the guilty and claimed a Trial. The prosecution examined as many as nine witnesses and on conclusion of the trial the learned trial judge held the appellant guilt of the offence under Section 324 307 of the Indian Penal Code and accordingly the appellant was sentenced to suffer rigorous imprisonment for three years with a fine of Rs.10 000 in default to suffer simple imprisonment for a term of three month for the offence under Section 324 of the Indian Penal Code and further rigorous imprisonment for a term of seven years with a fine of Rs.20 000 in default to suffer simple imprisonment for a term of six months for the offences punishable under Section 307 of the Indian Penal Code. The trial Court directed both the sentences to run concurrently Being aggrieved by and dissatisfied with the judgment impugned the appellant preferred this appeal on the contention that the judgment is against the weight of evidence on record Mr. Suman Das learned counsel appearing on behalf of the appellant submits that there are glaring discrepancies in the statements of the prosecution witnesses which would strike at the root of the prosecution case. It is also pointed out that the testimony of the post occurrence witnesses reflects that the de facto complainant and the prosecution witness nos. 1 and 3 are the interested witnesses being the sister and the husband of the victim. Prosecution Witness nos. 7 & 8 were declared hostile and all witnesses have deposed falsely with the embellished version in respect of alleged occurrence. Prosecution witness 2 namely Basanti Mondal deposed that the de facto complainant was served with the drink by the husband of Basanti Mondal but she did not mention the name of the appellant at any point of time. Prosecution Witness No. 9 being the Investigating Officer had examined the de facto complainant on 17.04.2015 at about 10.40 AM at JNM Hospital which is not possible for a human at that point of time. The seizure in respect of articles has not been properly done by the Investigating Officer and there is no explanation of the detail of the articles for the FSL and these are the lacuna in their investigation as per the submission made on behalf of the appellant. It is also pointed out that the medical evidence adduced in connection with this case does not justify conviction of the appellant for the charges under Section 324 307 of the Indian Penal Code. Accordingly the appellant has submitted that the judgment is bad in law and in fact and is liable to be set aside Now Mr. Das learned counsel for the appellant adverted to the report of the Superintendent of Dum Dum Central Correctional Home to submit that the appellant has nearly served out the sentence for a period of six years six months and seventeen days as on date. The report reflects that sentence undergone by the appellant was five years eleven months twenty two days as on 10.08.2021 and he was also allowed remission period of 189 days and altogether the appellant has served out sentence for six years six month and seventeen days out of seven years of rigorous imprisonment. As regards discrepancy when the judgment is confronted with discrepancies in evidence on record it does not necessarily demolish testimony. In my view minor discrepancies do not shake the prosecution case inasmuch as the statement of the victim lady her deposition and the medical evidence medical report read together convince the judicial mind to hold that the prosecution has been able to substantiate the charge under Section 307 of the Indian Penal Code The judgment impugned reflects that the appellant was convicted for the charges under Section 324 and under Section 307 of the Indian In my considered opinion since the punishment has been awarded in respect of the major charge under Section 307 of the Indian Penal Code there is no necessity for inflicting the punishment separately for the charge under Section 324 of the Indian Penal Code because both the sentences under Section 324 and 307 I.P.C. were directed by learned Court to run concurrently In the context of the above this Court finds no ground to interfere with the judgment of conviction however as regards sentence since the appellant has been punished with the imprisonment for 7 years and to pay fine of Rs.20 000 for the major charge under Section 307 I.P.C. the separate sentence under Section 324 I.P.C. is not required. Consequently the appellant would suffer imprisonment for seven years and to pay fine of Rs.20 000 in default to further simple imprisonment for six months which would suffice the justice With the above modification the appeal being CRA 717 of 2018 is disposed with a direction upon the learned Trial Court to remit the entire fine to the victim lady if realized Send copy of this order to the Superintendent of the Dum Dum Central Correctional Home for his information and doing the needful Let the Lower Court Records together with a copy of this judgment be sent down to the learned Trial Court for necessary information and necessary note in the Sessions Trial Register and for doing the needful Shivakant Prasad J SB A.R.(Court 

Summary: Since punishment had been awarded in respect of the major charge under Section 307 of the Indian Penal Code, it would be unnecessary to inflict the punishment separately for the charge under Section 324 of the Indian Penal Code since both the sentences was directed to be run concurrently. The Hon’ble High Court at Calcutta before the Hon’ble Mr. Justice Shivakant Prasad held in the matter of Sri Sukumar Mondal vs. The State of West Bengal &amp; Anr. [C.R.A. 717 of 2018]. The facts of the case relate to an instant appeal directed against the judgment dated 09.10.2018 and order dated 10.10.2018 respectively passed by the Additional Sessions Judge, Kalyani, Nadia, wherein the appellant was convicted for commission of an offense under Sections 324/307 of the IPC and sentencing him to suffer rigorous imprisonment for three years with a fine of Rs.10,000/- in default to suffer simple imprisonment for a term of three months for the offense under Section 324 of the IPC and further, rigorous imprisonment for a term of seven years with a fine of Rs.20,000/- in default to suffer imprisonment for a term of six for the offenses under punishable under Section 307 of the IPC. These sentences were to be run concurrently. The case is based on the incident on 17.04.2015, whereby the complaint of Sankari Sarkar, the de facto complainant, and her sister, namely Basanti Mondal, who went to Chakdaha Market by train for purchasing gift items and marriage articles for Basanti Mondal’s daughter’s marriage and decided to invite the appellant, at about 7.30 AM, upon reaching the house of the appellant, they saw that he was cooking. The de facto complainant proposed to cook for the appellant to which the appellant agreed, and hence, prepared glucose water for Sankari Sarkar and Basanti Mondal in two mugs, the appellant requested Sankari Sarkar and Basanti Mondal to drink, who, upon taking a sip, found a bitter taste to the drink. However, the appellant somehow convinced them saying that it was a good drink and that, once drinking it, they would feel better. After consuming such glucose water, the de facto complainant lost her sense in the kitchen, and when she regained her consciousness, she heard the hue and cry and found Basanti’s body found in a pool of blood and her intestine was gushing out of the abdomen and it was muffled around her neck and the appellant was missing. Sankari Sarkar somehow managed to shift Basanti to JNM Hospital, Kalyani, Nadia with the assistance of the local people. After the conclusion of the investigation, the learned Sessions Judge and hence, the learned Additional Sessions Judge, Kalyani, disposed of the matter for trial under Sections 326/307 of the IPC against the appellant, who abjured the guilty and claimed a trial. The prosecution examined as many as nine witnesses. Upon dissatisfaction with the impugned judgment, the appellant preferred the appeal on the contention that the judgment was against the weight of evidence on record. Learned counsel for the appellant claimed that there were glaring discrepancies in the statement of the prosecution witnesses. However, all witnesses were declared hostile and deposed falsely in respect of the alleged occurrence. It was also pointed out that the medical evidence adduced in this case did not justify the conviction of the appellant for the charges enforced, and thus, the judgment was considered to be bad in law and liable to be set aside. He also claimed submitted that the appellant had nearly served out the sentence for a period of six years six months and seventeen days as on date, whereas, the report reflected that the appellant had undergone five years eleven months twenty-two days, along with a remission period of 189 days, which counted up to six years six months and seventeen days of rigorous imprisonment served. The Hon’ble Court was thus, of the opinion, discrepancies had not shaken the prosecution as much as the statement of the victim lady, her deposition and the medical evidence, the medical report did, and that the prosecution had been able to substantiate the charge under Section 307 of the IPC. His Lordship also said that the impugned judgment reflected that the appellant was convicted for the charges under Section 324 of the IPC and Section 307 of the IPC, and therefore since the punishment had been awarded for the major charge as under Section 307 of the IPC, there was no necessity for inflicting the punishment separately for the charge under Section 324 of the IPC. Hence, the Hon’ble High Court at Calcutta before the Hon’ble Mr. Justice Shivakant Prasad found no ground to interfere with the judgment of conviction. However, since the appellant had been punished with imprisonment for 7 years and to pay a fine of Rs.20,000/- for the major charge under Section 307 of the IPC, the separate sentence under Section 324 of the IPC was not required.