Crl.A. 2129 of 2009                                                                                                                                                   REPORTABLE 1

   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.

2. On the 22nd 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  

Station, on the 25th 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  

on the 25th of July, 1992 and though he was taken for  

treatment to several hospitals, he ultimately died.  The

Crl.A. 2129 of 2009                                                                                                                                                   REPORTABLE 2

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

Crl.A. 2129 of 2009                                                                                                                                                   REPORTABLE 3

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

Crl.A. 2129 of 2009                                                                                                                                                   REPORTABLE 4

be some external injury.  Likewise, P.W. 9, Dr. Murari  

Mohan Kumar who had examined the deceased on the 24th  

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 5

     ........................J       [CHANDRAMAULI KR. PRASAD]

NEW DELHI FEBRUARY 24, 2011.