SWAPAN KUMAR SENAPATI versus STATE OF WEST BENGAL

Citation: [2011] 3 S.C.R. 205 · Decided: 24-02-2011 · Supreme Court of India · Bench: H.S. BEDI, C.K. PRASAD · Disposal: Disposed off

Judgment (excerpt)

[2011] 3 S.C.R. 205 
SWAPAN KUMAR SENAPATI 
v. 
STATE OF WEST BENGAL 
(Criminal Appeal No. 2129 of 2009) 
FEBRUARY 24, 2011 
[HARJIT SINGH BEDI AND CHANDRAMAULI KR. 
PRASAD, JJ.] 
A 
B 
Penal Code, 1860: s.325 - Grievous hurt - Accused 
assaulted his .uncle - No external injury - Death of accused's C 
uncle after three days - FIR lodged u/ss.341 and 325 three 
days after incident stating that the accused attacked the 
deceased, sat on his chest and hit him on his head with a 
stone - Trial court held that prosecution story was not credible 
and acquitted the accused - High Court, however, convicted D 
the accused u/s.304 Part-II and sentenced him to seven years 
rigorous imprisonment - On appeal, held: In the facts of the 
case, conviction u/s.304-11 was not justified- Delay in lodging 
FIR was explained - The injuries caused were apparently not 
with a stone but rough handling by the accused which led to 
E 
the internal injury to the brain and then to death - The case 
fell squarely u/s.325 -Appellant having undergone about two 
years of the sentence, in the interest of justice, sentence 
reduced to that already undergone - FIR. 
FIR: Delay in lodging - Strained relations between uncle 
F 
and nephew - Assault by nephew on his uncle leading to 
internal injury to his brain and then to death after three days 
.:... FIR lodged three days after the incident - Held: Delay was 
not fatal to prosecution case since the dispute was within the 
'family and in family dispute independent witnesses are G 
reluctant to come forward to give evidence - Moreover, since 
there was no external injury, the FIR was lodged only after the 
condition of the deceased deteriorated. 
205 
H 
206 
SUPREME COURT REPORTS 
[2011] 3 S.C.R. 
A 
CRIMINAL APP ELLA TE JURISDICTION : Criminal Appeal 
B 
c 
No. 2129 of 2009. 
From the Judgment & Order dated 27.01.2009 of the High 
Court at Calcutta in Govt. Appeal No. 15 of 1999. 
Pradip Ghosh, Rauf Rahim for the Appellant. 
Satish Vig for the Respodents. 
The following order of the Court was delivered 
ORDER 
1. We have heard the learned counsel for the parties. 
2. On the 22nd July, 1992 at about 11 :OOa.m. Satkari 
0 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 
E 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 
F of the deceased deteriorated on the 25th of July, 1992 and 
though he was taken for treatment to several hospitals, he 
ultimately died. The 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 
G 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. 
H The trial court, accordingly, acquitted the appellant. The High 
SWAPAN KUMAR SENAPATI v. STATE OF WEST 
207 
BENGAL 
Court, has, in appeal, reversed the judgment of the trial court 
A 
and relying on the evidence of P.Ws. 3 and 7 as also the 
medicaleviderice 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. 
B 
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. 
C 
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 
D 
that in any event a case under Section 304 (II) of the IPC was 
not made out and if at all the con

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