TAPAN KUMAR MAJH Vs. STATE

JUDGEMENT

(1.) By this appeal the Appellant challenges the judgment dated 21st January, 2011 convicting the Appellant for offence under Section 304 IPC and the order on sentence dated 22nd January, 2011 directing him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5000/- and in default of payment of fine to further undergo rigorous imprisonment for three months.

(2.) Learned counsel for the Appellant contends that the Appellant was in the business of jewellery making and the deceased was the nephew of the Appellant. The deceased was residing in a village of West Bengal with his father and was sent with the Appellant in the month of November to learn the job. The case of the prosecution at best is that since the deceased was not working properly, the Appellant used to give him beatings. There is no evidence that the injuries were caused to the deceased by the Appellant. The case of the Appellant is that the deceased because of his naughty acts fell down from the stairs causing injuries which led to his death. The learned Trial Court convicted the Appellant merely on the ground that the defence taken by the Appellant was false and in view thereof he was guilty. It is contended that a false defence can at best be an additional link in the chain of circumstances and cannot be used as substantive evidence to convict an accused. Number of prosecution witnesses have been examined. No one has stated that the Appellant ever beat the child or that there used to be quarrel between the Appellant and the deceased. Even on the earlier night, the deceased was taken by the Appellant to PW3 the Chemist where also he had not stated anything against the Appellant. PW10 the father of the deceased had admitted in his cross-examination that after the incident the father of the Appellant and PW10 had gifted land admeasuring 100 sq.yds. to PW10. Thus, in order to grab the property PW10 implicated the Appellant. Despite the fact that his child had died, PW10 neither came for cremation nor made any complaint to the Police. His statement was recorded only after the Police went to his village to examine him. Admittedly, even as per PW2, the child was in constant touch with the father on telephone and the child never made any complaint that he was beaten by the Appellant. The relevant incriminating evidence has not been put to the Appellant and hence the same cannot be used against him. In view of the fact that the chain of circumstances is not complete, the Appellant is entitled to benefit of doubt.

(3.) Learned APP for the State on the other hand contends that as per the post-mortem report the deceased received as many as 65 injuries. Excessive injuries and the internal extravagation of blood resulted in hemorrhage and shock causing the death. Pw14 Dr. Srinivasan has proved the post-mortem report Ex.PW14/A with regard to 65 injuries and he has also opined that the injuries were not due to fall. Further the weapon of offence i.e. sandasi (plier) recovered from the Appellant is an instrument used by the jewelers. As per PW14 the injuries on the deceased were possible by the said weapon. The false defence of the Appellant has been used as an additional link. There is sufficient circumstantial evidence against the Appellant to prove the offence beyond reasonable doubt. The silence of the deceased is also attributable to the fact that he came to Delhi only in November 2009 and he died in January, 2010 and thus could not have known the language. Even PW10, the father of the deceased knew only Bengali and thus he was examined before the Court with the aid of an interpreter. A perusal of the site plan shows that the injuries on the parts of the body as stated were not possible by fall. Hence the appeal be dismissed.