Calcutta High Court (Appellete Side)
Rasik Chandra Mondal & Anr vs The State Of West Bengal on 5 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 3 of 1995
Rasik Chandra Mondal & Anr.
-vs-
The State of West Bengal
Amicus Curiae : Mr. Bibaswan Bhattacharya
For the State : Mr. Arun Kumar Maiti, Adv.,
Mr. Anawar Hossain, Adv.,
Ms. Sreyashee Biswas, Adv.
Heard on: 05.01.2018
Judgement on: 05.01.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 12.12.1994 passed by the learned Additional Sessions Judge, Malda, in Sessions Case No.20 of 1992(Sessions Trial No.16 of 1993) convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer R.I. for life and to pay a fine of Rs.1,000/- each and in default of fine to suffer further R.I. for three months each and further convicting the appellant no.2 for commission of offence punishable under Section 25/27 of the Arms Act and sentencing him to suffer R.I. for five years and to pay a fine of Rs.5,00/- in default of fine to suffer further R.I. for one month, both the sentences so far as the appellant no.2 is concerned to run concurrently.
Prosecution case as levelled against the appellants and other accused persons is to the effect that in the night of 8.11.1988 at around 9 P.M. when the victim Suresh Mondal was having his dinner in the courtyard of his house along with his wife Arati Mondal, P.W.8. The appellants along with other accused persons unlawfully entered the house and surrounded the victim. Thereafter appellant no.2 took a pistol from another person named 'Bihari' and shot at different parts of the body of the victim. Appellant no.1 was also present at the place of occurrence and thereafter all of them fled away. The names of the accused persons were one Chandra Mohan Mondal (P.W. 1), reported to who lodged first information report against the appellants and other accused persons being Manikchak P.S. Case No.2 dated 9.11.1988 under Sections 143/448/324 of the IPC. The victim was initially taken to Manikchak P.H.C. and treated by P.W.2 and thereafter referred to Malda Sadar Hospital where he breathed his last on 11.11.1988. In conclusion of investigation, charge sheet was filed against the appellants and other accused persons under Section 302/34 of IPC and also under Section 25/27 of the Arms Act against the appellant no.2. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge for trial and disposal. Charges were framed under Section 302/34 of the Indian Penal Code against the appellants and other accused persons and under Section 25/27 of the Arms Act against the appellant no.2 and the same was read over and explained to them. The appellants and other accused persons pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 11 witnesses and exhibited a number of documents to prove its case.
The defence of the appellants and other accused persons was one of innocence and false implication. It was the specific defence of the appellant no.2 that he is a resident of Mathurapur and was not present at the place of occurrence. He examined four defence witnesses to establish that he was performing Kalipuja at village Mathurapur at the relevant time.
After analysis of the evidence on record, the trial judge by the judgment and order dated 1.12.1994 convicted and sentenced the appellants, as aforesaid. However, by the selfsame judgment and order other accused persons were acquitted of the charges levelled against them.
Mr. Bibaswan Bhattacharya, the learned counsel is requested to appear as amicus curiae in the instant case.
Mr. Bhattacharya argued that the evidence of the prosecution witnesses particularly the relations of the victim namely P.W.3 & P.W.8 ought not to be believed as there was a pre-existing rivalry between the victim on the one hand and the appellants on the other hand. He further submitted that P.W.1 did not refer to the presence of P.W.8 at the place of occurrence in the first information report. It is also submitted that the version of P.W.8 with regard to the manner and course of assault is not supported by the medical evidence. P.W.2 did not indicate any gunshot injury on the body of the victim. He also submitted that the trial judge had illegally refused to accept the defence alibi of appellant no.2 and had illegally convicted him. He accordingly, prayed for acquittal of the appellants.
On the other hand, Mr. Maiti, the learned Additional Public Prosecutor along with Ms. Biswas, learned counsel argued that the evidence on record particularly that of P.W.8 who is the most natural and established the prosecution case beyond reasonable doubt. It is also submitted that P.W. 4 and P.W. 10, the medical experts have categorically deposed that the victim had suffered gun injuries. Hence, there is no contradiction between the ocular version and the medical evidence in the instant case. Accordingly, the appeal is liable to be dismissed.
Let me consider the rival version of the parties in the light of the evidence on record.
P.W.1, Chandra Mohan Mandal is the defacto complainant. He is a neighbour of the victim. He deposed that on Kalipuja night at around 8.30-9 P.M. he heard a sound of bomb blast or gun fire. He heard the sound from the northern side of his house where Suresh Mondal's house is situated. He rushed towards the spot and found that other villagers were also running towards the house of Suresh Mondal. He noticed that Suresh was lying in the veranda in front of the kitchen. He found injuries on Suresh and his food was scattered at that place. At that time Arati, wife of Suresh reported that 7/8 persons had entered their house and further named the appellants as the miscreants. Arati stated that the appellants had given out the names of the other accused persons who were accompanying them. He deposed that a hurricane lantern was burning at the place of occurrence. They immediately arranged to take Suresh to the hospital. He was taken to Manikchak Health Centre in a bullock cart and given first aid. The victim disclosed the names of the appellants and other accused persons to him. He was thereafter referred to Malda Sadar Hospital. He was admitted at Malda Sadar Hospital on 9.11.1988 and succumbed to his injuries on 11.11.1988. He lodged complaint at Manikchak Police Station (Ext.1).
In cross-examination, he stated that criminal cases are pending against him at the behest of appellant no.1. He deposed that Dhiren is his brother. He also deposed that appellant no. 1 and Suresh resided in the same plot. On the southern side of the plot Suresh had his residence while appellant no. 1 resided on the northern side on the plot. Manikchak. is about 4 miles from their house and is a different village.
P.W.3, Dhiren Mondal deposed that Suresh was his cousin. Appellant no. 1 is the elder brother of Suresh. His house is situated on the South- Eastern corner of Suresh's house. On Kalipuga night at about 9 P.M. he heard a gun shot from the side of the Suresh's house and thereafter he rushed to the spot. Other villagers also rushed to the spot. On reaching the house of Suresh, he found that Suresh was lying on the verandah and his food was scattered here and there. He also found injuries on the body of Suresh. Arati was sitting and crying. Arati stated that appellants and other accused persons had assaulted Suresh. She had come to know the names of the other accused persons from the mouths of the appellants.
P.W.8, Arati Mondal is the wife of the victim and the most vital witness in the instant case. She stated that the incident occurred 4½ years ago. On Kalipuga night at around 9P.M. she was serving rice to her husband. At that time her husband was sitting in the verandah of the kitchen and she was sitting by his side. At that time 8 persons armed with lathi, spear pistol entered their house. They surrounded her husband. A hurricane lantern was burning. She could recognize the appellants. Appellant no.2 took a pistol from one of the persons who was referred to as "Bihari" and fired thrice at her husband. Thereafter she burst into tears and her husband fell down. She came to know the names of the other accused persons as appellant no. 2 was referring them by their respective names. Thereafter they fled away from the house. Villagers came to their house and she narrated the incident to them. Her husband was in serious condition. She was taken to Manikchak P.H.C. and thereafter referred to Malda Sadar Hospital where he died on Friday. She came to the hospital and identified the body to the police. She signed on the inquest report.
P.W.7, Bahu Mondal was declared hostile. He, however, admitted that in the night of Kalipuja Suresh was found lying with his injuries in the verandah and his food was found scattered around the place. A hurricane was burning at the place of occurrence.
These are the witnesses of fact.
P.W.2, 4 & 10 are the medical witnesses.
P.W.2, Dr. M. K. Saha examined the victim at Manikchak P.H.C. He found the following injuries:
"1. One sharp cut injury on the left arm on its outer aspect about two finger below the shoulder joint. Vertical in nature measuring 1 " x 1/3 x ¼ x ½" with bleeding.
2. Lacerated injury over right shin bone six finger below the lower margin of right patela measuring ½" x ½" x ½". Margins irregular and was associated with bleeding.
3. Sharp cut injury over left ankle joint oblique in nature measuring 1½ " x ¼" (length and breadth)."
P.W 10 was the doctor who treated the victim at Manikchak Sadar Hospital on 9.11.1988. He deposed that the patient was admitted by the emergency Medical Officer Dr. S.B. Saha and the provisional diagnosis was multiple bullet injuries with intestinal obstruction. On asking the patient party he came to know the history of injuries as pipe gun injuries. He found a wound of entry over right lower and lateral aspect of scapula about 1/3rd" x 1/3rd". There was an injury over right leg 1" x ½" x bone deep. There was another injury on the back or upper part of left arm 1" x ½" (wound of exit). There was also injury over left ankle. He also found motor and sensory loss over both the lower limbs. He advised X-ray of chest, right leg and left ankle. The patient succumbed to his injuries on 11.11.88 at 4.50 p.m. He proved the bed ticket (Ext. 8). He stated that the injuries were sufficient in ordinary course of nature to cause death.
P.W 4 was the autopsy surgeon who conducted autopsy on the victim. She found the following injuries :
1. Bullet injury entrance of which was oval in shape (1/3" x 1/3rd" margin blurred and inverted on the posterior wall of right axilla between 3rd and 4th ribs. Wound of exit margin everted 1" x ¾" on the posterior wall of left shoulder, direction of wound - medially upwards and laterally left side.
2. Sharp cut wound size about 1" x ½" x sharp subcutaneous deep on the right leg.
3. Sharp cut injury size abut 1" x ½" by sharp subcutaneous deep on the left foot (anterior surface).
4. Sharp cut injury size abut 1½" x ½" x sharp subcutaneous deep on the right thigh (posterior wall).
The condition of other organs :-
Scalp healthy, membrane healthy, brain congested, chest wall - 2nd rib right side fractured, 3rd rib left side fractured, pleura ruptured, right lung lacerated, left lung lacerated, pericardium fluid present, heart empty, abdominal walls healthy, peritoneum healthy, mouth pharynx and esophagus healthy, stomach empty, small intestine healthy, right intestine healthy, liver slightly congested, spleen slightly congested, kidneys congested, bladder empty, organs of generation - external and internal-healthy. In her opinion, death was due to ante mortem, homicidal in nature. She proved the post mortem report (Ext. 2).
P.W 11 was the investigating officer in the instant case. Appellant no. 2 examined four witnesses in order to establish his alibi that he was performing kali puja at the relevant time at Manikchak village.
D.W 1 was an assistant SI of police. He deposed that there was a community kali puja held at Manikchak near the P.S and D.W 2, Bibhuti Jha was the priest in the said puja. D.W 2 deposed that he was performing puja at 8.11.88. The appellant had came to offer 'bhog' in the said puja at about 7 p.m. He was making arrangement for puja from 7 p.m. to 3 a.m. D.W 3 and 4 also corroborated that the Kali puja was performed at village Manikchak and they had seen the appellant no. 2 in the said puja.
From the aforesaid evidence it is established that the victim Suresh had suffered gun shot injuries on his person while he was having his dinner sitting in the courtyard of his house on 8.11.1988 at around 9.30 p.m. Although it has been argued that P.W 2 has not noted gun shot injuries in his injury report while treating the victim, it appears from the unequivocal evidence of P.W 10, the doctor who treated the victim for two days at Manikchak hospital and P.W 4 the autopsy surgeon that the victim had suffered a number of gun shot injuries which were sufficient in the ordinary course of nature to cause death. Evidence on record shows that P.W 2 had only given first aid to the victim and, therefore, it is likely unable to identify the exact nature of injury suffered by the victim. In the light of the more specific evidence by the expert witnesses namely P.W 4 and 10 with regard to the nature of injuries on the victim, I have no doubt in my mind that the victim had died due to gunshot injuries. Hence, I am of the opinion that there is no conflict between the ocular version and the medical evidence, as aforesaid in the instant case.
Coming to the ocular evidence, it has been strongly argued that P.W 8 ought not to be relied upon as there was an enmity between the parities. It is true that there was a land dispute which was the motive for commission of the crime. However, the presence of P.W 8 who is the wife of the victim and was serving dinner to her husband on the Kali Puja night is so natural and probable that I find it difficult to ignore her presence by the side of her husband while he was having his last supper. That apart, her evidence with regard to the assault of her husband by the appellants is clear and convincing and is also supported by the medical evidence of P.W 4 and 10, as discussed hereinbefore. Her evidence remained unshaken in cross-examination and she also explained the source of light by which she could recognize the appellants who are known to her from before as the assailants of her husband.
Moreover, the evidence P.W 8 is corroborated by P.W 1 and 3. They came to the place of occurrence soon after the incident. P.W 8 had narrated the incident to them. The corroboration of P.W 1 and 3 of the eye witness version of P.W 8 lends credence to her evidence and in the light of such corroboration on record I do not have any doubt as to the truthfulness of P.W 8 in the instant case.
This brings me to the defence plea of alibi raised by the appellant no. 2. It is contended by appellant no. 2 that he was in the community kali puja at the village Manikchak from 7 p.m. to 3 a.m. and, therefore, he could not have been present at the place of occurrence. The two villagers are separated by a distance of 4 miles and, therefore, it cannot be said that between 7 p.m. to 3 a.m. the appellant could not have slipped out from the kali puja which was being celebrated throughout the night to commit the murder. In this perspective I have analyzed the evidence of defence witnesses including D.W
2. Although all the defence witnsses spoke of the presence of the appellant at the kali puja it is absurd to believe that the said witnesses who were the priest and other devotes at the said puja kept constant vigil on the appellant to claim that he was continuously present between 7 p.m. to 3 a.m. at the puja. Hence, the defene evidence does not wholly improbabilise the prosecution case that the appellant no. 2 may have slipped out of the puja and committed the murder at the residence of the victim and thereafter to celebrate returned the puja for the remainder of the night at his village.
Accordingly, I uphold the conviction and sentence imposed on the appellants.
In the event, appellants are not in custody, their bail bonds shall be cancelled and they shall be taken into custody to serve out the remainder of sentences in accordance with law.
The period of detention, if any, undergone by the appellants during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon them in terms of section 428 Cr.P.C.
The appeal is, accordingly, dismissed.
I record my appreciation for the able assistance rendered by Mr. Bhattacharya, learned advocate as amicus curiae in disposing of the appeal.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.
(Joymalya Bagchi, J.) I agree (Rajarshi Bharadwaj, J.) rkd/tkm