Calcutta High Court (Appellete Side)
Mohiuddin Mallick Alias Mohidul ... vs The State on 14 November, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:
Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. No. 249 of 1988
Mohiuddin Mallick alias Mohidul Mallick
Vs.
The State
For the appellant : Mrs. Pronoti Goswami
For the State Mr. Subir Banerjee
Heard on : 11.11.2014
Judgement on : 14.11.2014
Joymalya Bagchi, J. : The appeal is directed against the judgement and
order dated 10.05.1988 convicting the appellant for commission of offence
punishable under section 304 Part II of the Indian Penal and sentencing him to
suffer rigorous imprisonment for four years.
Prosecution case, as alleged, against the appellant is as follows :
On 11.08.1984 the family members of the appellant had gone to steal fish
from the fishery of one Basir Molla. They were chased by the employee of Basir
Molla and sought refuge in the house of victim Bhadi Bibi and her family
members. Womenfolk of the family opposed such conduct and troubled brew
over the matter. In the evening of that day one Mohiuddin Mallick and Alauddin
Mallick assaulted Kasem Ali Sardar (PW 3), son of the victim. On the following
day, when PW 3 went to the Haat at Dakshwin Bhevia in the afternoon he was
again accosted by the family members of the appellant. Next day, that is,
13.08.1984 PW 3 being accompanied by his brother, PW 11, went to Hasnabad
P.S. to report the matter which was diaried as General Diary Entry No. 4394
dated 13.08.1984. When the brothers were at the police station they received
information that their mother Bhadi Bibi had been attacked by the accused
persons and assaulted with spear on the head.
It is alleged that on the fateful date around 10‐30 a.m., the victim while
proceeding down a village path towards her house was accosted by the accused
persons being armed with lathis and other weapons and in course of such attack
the appellant snatched a spear from the hand of Mohidul Mollick and hit her on
the head from the back. She suffered a bleeding injury on the head and fell down
on the spot.
On receipt of such information, another son and daughters‐in‐law of
Bhadi Bibi, PW 4, 5 and 15 respectively along with two grandsons, PW 8 and 9
came to the place of occurrence. Local people also arrived. PW 4, Md. Nuro
Sardar, son of the victim asked Mujibar Rahaman (PW 1) to go to Hasnabad
Police Station and report the matter to the police and the latter accordingly
diarised the event being GD Entry No. 397 dated 13.08.1984. Police party left for
the place of occurrence.
It is further alleged that the victim narrated the incident to witnesses at the
place of occurrence. She was moved to Bhevia in a split bamboo raft and
thereafter to Basirhat Sub‐Divisional hospital in a motor van. It is also alleged
that PW 3 and 11 met the motor van at Morrasha Anchal enroute to the hospital
and the victim again narrated the incident to PW 3 and 11. The victim was
treated at the hospital by PW 6 (Dr. Sanjoy Das). She expired on the next day.
Police party arrived at the place of occurrence and on the basis of written
information of PW 2, Rafiqul Islam, who claimed to have seen the incident,
Hasnadab Police Station Case No. 4 dated 13.08.1984 under section 148/149/326
of the Indian Penal Code against the appellant and seven other accused persons
was registered. Upon the death of Bhadia Bibi, section 304 Part I was added.
In conclusion of investigation in the instant case, charge sheet was filed
against the appellant and seven other accused persons. Charges were framed in
the instant case against the appellant and seven other accused persons under
section 148/304 Part I read with section 149 of the Indian Penal Code.
The case being a sessions triable one was committed to Court of Sessions,
Barasat, North 24‐Parganas and transferred to the Additional Sessions Judge,
North 24‐Parganas for trial and disposal.
In course of trial, prosecution examined as many as 29 witnesses and
exhibited a number of documents.
The defence of the appellant was one of innocence and false implication. It
was also suggested that there was enmity between the family of the appellant
and that of the victim and as a result he has been falsely implicated in the instant
case.
In conclusion of trial, learned trial Judge by judgement and order dated
10.05.1988 convicted the appellant for commission of offence punishable under
section 304 Part II of the Indian Penal and sentenced him to suffer rigorous
imprisonment for four years. By the selfsame judgement and order other accused
persons were acquitted of the charges levelled against them.
Mrs. Goswami, learned advocate appearing for the appellant submitted
that the evidence of PW 2 (Rafikul Islam) and PW 16 (Sukus Ali Molla), the
purported eye witnesses, suffered from patent contradictions and/or
inconsistencies. Evidence of PW 2 and 16 was not mutually consistent and the
place of occurrence has not been proved beyond reasonable doubt. There is delay
in registration of the first information report and there is confusion as to when
and under what circumstances police arrived at the place of occurrence. She
further argued that the purported dying declaration of the victim before PW 3, 5,
11 and 15 is improbable as there is evidence on record that the victim was in an
unconscious and drowsy state and such version has been introduced by the
prosecution witnesses for the first time during trial. She further submitted that
the ocular version of the prosecution witnesses that the victim was chased by a
spear there is no puncture mark on the victim. She accordingly prayed for
acquittal of the appellant.
Mr. Banerjee, learned Additional Public Prosecutor submitted that the
evidence of the eyewitnesses, namely, PW 2 and 16 is consistent and has
convincingly established the appellant as the assailant. Victim suffered head
injury due to such assault and succumbed to her death. This fact is proved by the
medical evidence of PM doctor, PW 14. There is no inconsistency in the ocular
version of PW2 and 16 and the medical evidence on record. There is evidence on
record that the victim had subsequently gained consciousness and therefore
evidence of prosecution witnesses as to dying declaration of the victim ought not
to be disbelieved. He accordingly prayed for dismissal of the appeal.
The most vital witnesses in the instant case are PW 2 and 16. They claimed
to be eyewitnesses of the incident. PW 2 (Rafikul Islam) stated that on 14.08.1984
between 10 and 10.30 a.m. he was going to his agricultural lands and was
proceeding along a westward road. At that time he saw the victim was
proceeding towards her house. Near the house of Ajibar Mistri she was attacked
by some people. He saw the appellant stab the victim on the head with a spear.
The victim sustained a gapping injury on the head. She fell down on the ground.
Police came to the place of occurrence. He handed over a written complaint to
the police. He has proved the written complaint (Exhibit 1) and his signature
thereon (Exhibit 1/1).
In cross‐examination, he stated that when Bhadi Bibi was assaulted she
was alone. He also stated that Bhadi Bibi was 40 cubits away when he first saw
her. She came out of Ajibar Mistri's house and was proceeding to her own house.
Bhadi Bibi was speared from behind. She fell down on the ground and was lying
on her back. He was at a distance of 150 cubits when the incident happened.
Immediately thereafter he along with others went to the spot. Bhadi Bibi gave
out the name of the assailants.
PW 16 (Sukua Ali Molla) stated that on the fateful day at about 10 a.m. he
was transplanting saplings on his Barga land. At the time of occurrence, he had
gone to relieve himself in a piece of land behind Gola Hossain's fishery. He
found Bhadi Bibi coming from Ajibar Mistri's house along a Kancha road and
going towards her house. Appellant speared Bhadi Bibi on her head from
behind. She fell down on the ground. He came running to the place of
occurrence. Accuseds chased him away. Thereafter sons of the victim came to the
place. The earth at the place of occurrence was soaked with blood. Initially victim
was unconscious but after sometime she gained consciousness. She was removed
in a raft made of split of bamboo to Bhevia and then she was taken to Basirhat
hospital by a matador.
In cross‐examination, he stated that the victim was 150‐200 yards away
from the place where he was seated when he first saw her. She was about 100
yards away when accused Nur Mallick held her hand. Golam Mallick's fishery
was 100 yards from the place of occurrence. The victim was attacked from
behind. The blade of the spear did not penetrate her head. It was thrust into the
head and there was a gaping wound. He did not tell anyone that he made
statement to IO 2/3 days after the occurrence.
PW 19 (Md. Abu Hossain Molla) is a hostile witness who claims that he
was at the place of occurrence at the relevant time. He corroborated PW 2 and 16
to the extent that he stated he found the victim with bleeding injury on her head
lying at the place of occurrence. He however was unable to state who had
assaulted the victim.
Immediately after the occurrence sons and relations of the victim and
other local people, namely, PW 4, 5, 7, 8, 9 and 15 had come to the place of
occurrence.
Let me examine the evidence of the said post occurrence witnesses.
PW4 (Md. Nuro Sardar) is a son of the victim. He stated that on the date of
occurrence Akbar Ali informed him that his mother had been murdered by the
accused persons. He went to the place of occurrence. Mujibar Rahaman (PW 1)
informed him about the incident. He found her mother was lying on the Kancha
road leaning from her head. The earth at the place of occurrence was soaked with
blood. His mother was conscious. She showed him where she was stuck on the
head.
PW 5 (Asura Bibi) is the daughter‐in‐law of the victim. She came to the
place of occurrence after hearing the incident and found the victim lying there
with a bleeding injury on her head. Initially the victim was unconscious but she
subsequently recovered consciousness and stated that the appellant had hit her
with a spear on her head.
PW 8 (Safili Ali Sardar) and PW 9 (Sayed Ali Sardar), grandsons of the
victim, also came to the place of occurrence after the incident. They stated that
the victim was initially unconscious but later recovered her consciousness.
PW 15 (Jahira Bibi) is another daughter‐in‐law of the victim who
corroborated the evidence of PW 5 and stated that the victim narrated that
appellant had assaulted her with spear.
PW 7 (Robbani Sardar) is an independent post‐occurrence witness who
found the victim at the place of occurrence and stated that the victim had
subsequently recovered her senses.
Mrs. Goswami argued that the place of occurrence had not been proved in
the instant case.
I am unable to accept such submission. Evidence of the aforesaid
witnesses clearly show that the victim had suffered bleeding injury of her head
and was lying in the pathway near the house of Ajibar Mistri. Blood was coming
from such injury and the place was soaked with blood. It is further the evidence
of the Investigating Officer, PW 20 (Khitish Narayan Samaddar) that he seized
bloodstained earth from the place of occurrence in the presence of the witnesses
under a seizure list (Exhibit 11). PW 19 admits his signature on the said seizure
list.
The aforesaid evidence on record is therefore establishes that the victim
suffered injury on her head and fell down on the pathway near the house of
Ajibar Mistri. The place of occurrence is therefore clearly established in the
instant case.
Next question which arises is who was the assailant of the victim.
Prosecution strongly relied on the eyewitnesses, PW 2 and 16, in that regard.
Mrs. Goswami argued that the said witnesses are unreliable witnesses.
PW 2 and 16 are independent and disinterested witnesses. PW 2 is a
neighbour who had gone to his field to look after his crops. On his way back he
saw the incident. His presence at the place of occurrence is most natural and
probable. Written information given by him to the police was treated as first
information report in the instant case. His evidence is unshaken in cross‐
examination and does not suffer from material contradictions and/or
inconsistency. Evidence of PW 2 is corroborated by PW 16 who also saw the
incident from a nearby field. Evidence of PW 16 has been criticized on the
ground that he did not immediately divulge the incident and was examined by
IO 2/3 days after the occurrence.
As discussed hereinbefore PW 2 and 16 are disinterested witnesses and
have no reason to falsely implicate the appellant. Their evidence is truthful and
convincing although there is a belated examination of PW 16 by the investigating
agency, the same cannot be a reason to disbelieve his version in the facts of the
case as PW 2, the other eyewitness, had promptly reported the matter to the
police which was treated as FIR in the instant case.
There is also no delay in lodging FIR. It is argued that though it is stated
by PW 2 that he handed over complaint to police in the afternoon, FIR in the
instant case appears to have been lodged at 6 p.m. in the evening. This issue has
been explained away by PW 10 (HG 1103, Rabindra Nath Das). He stated that he
arrived at the place of occurrence with the second officer of the police station.
O/C arrived at the spot later. The latter handed over a letter to him and he took it
to Hasnabad P.S. and handed it over to C.I. for lodging FIR. Hence, although the
written complaint of PW 2 was accepted by police at P.O. in the afternoon it was
sent to P.S. though PW 10 and registered in the evening. The circumstances of
lodging the FIR is clearly explained by the prosecution and there appears to be
no delay in lodging such FIR.
Evidence of PW 2 and 16 have been strongly criticized on the ground that
their ocular version is inconsistent with the medical evidence. It has been argued
that assault by spear ought to have caused fractured injury and not lacerated
injury as found in the post mortem report.
PW 14 is the PM doctor. He found the following injuries on the victim :‐
"1. Rigormotis‐negetaive; build‐average injuries were as follows
:‐
1.Lacerated injury - 2½" long on right parietal region, which was stitched.
2. Fracture right parietal bone. Weapon used to cause such injuries had been in my opinion blunt weapon (heavy). After removal of the stitch, I found as follows _‐
1. Scalp as stated.
2. Membranes - subdural haemorrhage on right parietal area.
3. Brain - blood accumulated on the right parietal lobe of brain"
In his deposition he stated that the injuries, as aforesaid, could be caused by spear if it is driven with sufficient force from right side and they cannot be caused by fall on hard strive.
In cross‐examination, he stated that he mentioned lacerated injury on the victim as there was stitch on the wound.
It is pertinent to note that Dr. Sanjoy Das (PW 6) who treated the victim at Barishat Hospital found the incised injury on the scalp of the victim as follows :‐ "1. An incised wound situated over right parietal region of scalp; size of the wound average 3" x ½ " - underlying bone was exposed; Clinically the fracture was detected;
2. Bleeding from the wound - present."
It is therefore clear that the medical evidence on record is not inconsistent with the ocular version that the victim was assaulted by a spear on the head. PW 14 has opined that such injury suffered by the victim may be caused by a spear driven with sufficient force. He has explained that as the wound was stitched he has described it as lacerated injury.
Accordingly I am of the opinion that there is no patent inconsistency in the ocular and medical version as transpiring from the prosecution evidence so as to throw out the prosecution case.
In addition to the ocular version, prosecution had also relied on dying declarations made by the victim at the place of occurrence as deposed by PW 5 and 15 and in the matador enroute to the hospital before PW 3 and 11. Mrs. Goswami strongly criticized such evidence on the ground that it is the deposition of PW 6, Dr. Sanjoy Das, who treated the victim at Basirhat Sub‐divisional Hospital that the victim was drowsy during admission and was in such condition in the hospital. She submitted that there is evidence on record that the victim was in an unconscious condition and therefore the claim of the prosecution witnesses that she narrated the incident to them ought not to be believed.
From the evidence on record it appears that the victim narrated the incident once at the place of occurrence to PW 5 and 15 and subsequently in the matador while she was being taken to the hospital to PW 3 and 11. With regard to the level of consciousness of the victim, PW 14 in cross‐examination stated that in all cases concussion of brain does not render a victim speechless. The victim may recover her sense and thereafter again become unconscious due to clotting of blood inside the brain.
It is therefore clear that the victim in such condition may slip into consciousness from unconsciousness and vice versa. In fact, such is the evidence of witnesses that the victim was initially unconscious but subsequently regained consciousness. It was during such conscious phase the victim narrated the incident to the witnesses.
Hence it cannot be said that the victim was also unconscious and could not have narrated the incident to the witnesses as claimed by the prosecution.
It has also been argued that although there is evidence that police came at the place of occurrence and removed the victim, PW 20 deposed that they saw the victim at Murarisha crossing where she was being removed to hospital in a matador. This apparent confusion is clarified from the general diary lodged by PW 1 at Hasnabad P.S. being entry No. 397 dated 13.08.1984 (Exhibit 8) where it is stated he first reported it to Murarisha Police Camp. It is apparent police from the said Camp had gone to the P.O. before PW 20 arrived there from Hasnabad Police Station.
From the aforesaid discussion, it is clear that the prosecution case is established beyond reasonable doubt by the eyewitnesses' version of PW 2 and 16 and the dying declaration as proved by PW 3, 5, 11 and 15 in the instant case.
At the time of admission of the appeal a Rule was issued upon the appellant to show cause why he ought not to be convicted under section 304 Part I of the Indian Penal Code.
Evidence on record does not show that the appellant had any intention to kill the victim and he dealt a single blow on the victim although he had opportunity to cause further injury.
Accordingly, I am of the opinion that the appellant was rightly convicted under section 304 Part II of the Indian Penal Code. Sentence imposed upon the appellant is upheld. Rule is accordingly discharged.
The appeal is dismissed.
The bail of the appellant is cancelled and he is directed to surrender before the trial Court within a month to serve out the sentence, failing which the trial Court shall take appropriate steps to execute the sentence in accordance with law.
The period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the sentence in terms of section 428 Cr.P.C.
Lower court records along with copy of judgement be sent down to the trial Court at once.
(Joymalya Bagchi, J.) P.A. to J. Bagchi, J.