Calcutta High Court (Appellete Side)
Sri Lakshmi Mondal vs The State Of West Bengal & Ors on 24 April, 2009
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Girish Chandra Gupta
AND
The Hon'ble Justice Kishore Kumar Prasad
C.R.A. NO. 258 OF 1990
SRI LAKSHMI MONDAL
Vs.
THE STATE OF WEST BENGAL & ORS.
Mr. Biplab Mitra,
Mr. Subrata Mukhopadhyay,
......... For the Appellant.
Mr. Jayanta Narayan Chatterjee
......... For the State
Heard on : 6.3.2009.
Judgement on : 24.4.2009.
Kishore Kumar Prasad, J.
This appeal is directed against the judgment and order of conviction dated 25.5.1989 passed by the learned Sessions Judge, Murshidabad in Sessions Trial No. 3 of January 1989 arising out of Sessions Serial No. 81 of 1988 by which the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code. The appellant was heard on the question of sentence on 25.5.1989 and thereafter by an order passed on the same day that is on 25.5.1989 he was sentenced to suffer rigorous imprisonment for life.
Being aggrieved by the order of conviction and sentence passed by the learned Trial Court, the appellant has preferred the present appeal.
The prosecution case as projected during trial in a nutshell is that on 9.1.1988 at about 5.30 p.m. while Biren Mondal, the deceased was carrying water from a canal (Nayanjali) in front of his house with the help of a Baank (Behak), Lakshmi Mondal (the appellant herein), the full brother of the deceased who was standing near a electric post beside the road in front of the house of Haripada Sarkar hurled a bomb possessed by him. The deceased had sustained injuries due to explosion of the said bomb on his left buttock and the appellant fled away. The deceased was immediately shifted to Jangipur Sub-Divisional Hospital for his treatment.
At about 18.05 hours on 9.1.1988, Chhabilal Mondal (P.W. 1), the father of both the accused and appellant came to Raghunathganj P.S. and made a complaint which was reduced to writing by the police officer on duty.
At police station, Raghunathganj, on the basis of Chhabilal's complaint, Raghunathganj P.S. Case No. 5 dated, 5.1.1988 was initially registered under Section 326 of the Indian Penal Code and 9B (ii) of the Indian Explosive Act against the appellant. Biren Mondal expired at Jangipur Hospital and Section 304 of the Indian Penal Code was added in the relevant column of the formal F.I.R. on the prayer of Investigating Officer.
The Investigating Agency took up investigation. In the usual course, after completion of investigation, charge sheet under Section 326/304 of the Indian Penal Code and 9 B (ii) of Indian Explosive Act was submitted against the appellant.
The case was committed to the Court of Sessions.
In the trial court, charge under Section 302 of the Indian Penal Code was framed against the appellant. The appellant pleaded not guilty to the charge framed against him and claimed to be tried.
The prosecution examined as many as eleven witnesses in the trial court. P.W. 1, Chhabilal Mondal, the informant-cum-father of the deceased as well as appellant; P.W. 2 Malati, the wife of the deceased and P.W. 3 Fultusi, the daughter of the deceased respectively were the eye witnesses of the occurrence; P.W. 4 Mahadeb Mondal was an inhabitant of village Ailer Uper, by whose rickshaw van, the deceased was taken to hospital in injured condition; P.W. 5 Patan Sarkar was the then police officer who conducted inquest report on the dead body of the deceased at Jangipur Sub-Divisional Hospital on 10.1.1988; P.W. 6 Jiten Mondal was merely tendered by the prosecution for cross- examination and the defence declined to cross-examined him; P.W. 7 was the then Homeguard of Raghunathganj P.S. who took the dead body of the deceased from Jangipur Hospital to Jangipur morgue as per order of superior officer; P.W. 8 was then a teacher of Raghunathganj F. P. School before whom the wearing apparels of the deceased were seized at P.S. under seizure-list which he signed (exhibit 3/3); P.W. 11, S.I., Md. Golam was the then O.C. of Raghunathganj P.S. who on 9.1.1988 had recorded the complaint made by P.W. 1 (Exhibit 1) and filled up the formal F.I.R.; P.W. 10, Dr. K.M. Hossain was the then Superintendent of Jangipur Sub-Divisional Hospital who on 10.1.1988 had conducted post-mortem report on the dead body of the deceased and P.W. 9, S.N. Chatkhandi was the then S.I. of Raghunathganj P.S. who as per endorsement of O.C. of the P.S. took up investigation of this case and who in course of investigation visited the P.O., prepared sketch map of P.O. with index (Exhibit 4, 4/1), examined the available witnesses including the injured, seized the blood stained underwear, lungi and Dhuti of the deceased under seizure-list (Exhibit
2), collected the injury report and post mortem examination report of the deceased, made prayer to Magistrate for issuance of W/P/A against the appellant indicating him as absconder and ultimately after conclusion of investigation he submitted charge sheet against the appellant under sections 326/304 of the Indian Penal Code and 9B (ii) of the Indian Explosive Act.
Apart from leading oral evidence, the prosecution also tendered and proved a large number of exhibits which were marked as Exhibits 1 to 5 and Mat Exhibit I. Though the appellant was examined under Section 313 of the Code of Criminal Procedure, yet there was no adduction of evidence by him.
The defence version as it appears from the trend of cross- examination of P.Ws. as also from the answers given by the appellant in reply to the question put to him under Section 313 of Code of Criminal Procedure was that the appellant is innocent.
The learned Trial Judge after considering the oral and documentary evidence and hearing the learned counsel for the parties passed orders of conviction and sentence against the appellant as indicated above.
Learned counsel appearing on behalf of the appellant submitted that the evidence of the eye-witnesses is unworthy of credit; they are interested witnesses and therefore on the version of the said eye witnesses, the learned Trial Court was not justified in convicting the appellant for the offence complained of.
Per contra, the learned counsel appearing on behalf of the State- respondent supported the impugned judgment passed by the learned Trial Judge. It was argued that the learned Trial Judge had detailed and discussed the evidence adduced by the prosecution at length and had assigned adequate reason for recording his finding against the appellant for the offence punishable under Section 302 of the Indian Penal Code and no case has been made out for this Court to interfere with the impugned judgment.
We have given our anxious and thoughtful consideration to the respective contentions of the learned counsel for the parties. We have perused the evidence both oral and documentary tendered and proved by the prosecution to substantiate its case and the impugned judgment.
At the outset, it needs to be mentioned here that it is not disputed that the deceased Biren Mondal died on account of the injuries sustained by him as a result of hurling bomb on the date of occurrence at the place as claimed by the prosecution. The deceased was taken to Jangipur Sub-Divisional Hospital in injured condition by the Rickshaw Van of P.W. 4 immediately after the incident on 9.1.1988 where he succumbed to injuries on 10.1.1988 at Jangipur Sub- Divisional Hospital. The dead body of the deceased was taken to Hospital morgue by P.W. 7 after performing inquest by P.W. 5 at Hospital on the dead body of the deceased on 10.1.1988, P.W. 9, the I.O. of this case visited the place of occurrence on the very date of occurrence, seized the blood stained wearing apparels of the deceased under seizure-list (Exhibit 2) at 20.10 hours on 9.1.1988.
P.W. 10, Dr. K. M. Hossain, the then Superintendent of Jangipur Sub-Divisional Hospital who conducted post mortem on the dead body of the deceased on 10.1.1988 at Jangipur Hospital morgue found the following injuries :
i. Extensive lacerated injuries with blackening spot of loin and left glubial region causing injuries to vertabral region into upper part of abdomen, ii. Abrasion with black spot of left forearm.
He also found stone chips and glass chips from the wounds and he preserved the same.
In the opinion of Dr. Hossain death was due severe shock for the injuries which were ante-mortem and homicidal in nature. It was further opined that the injuries might be caused by throwing of bomb. The existence of injuries and opinion of P.W. 10 were not at all challenged in cross-examination.
Thus, it is amply established that the deceased Biren Mondal met a homicidal death on account of the bomb injuries sustained by him on the date of occurrence.
Now, we have to consider whether the appellant herein was responsible for causing bomb injuries to the deceased resulting into his death at the Hospital.
P.W. 1 Chhobilal, the informant cum father of the deceased as well as the appellant fully corroborated in his evidence about the allegations described in the F.I.R. (Exhibit 1).
He stated in his evidence that on 9.1.1988, Saturday, at about 5/5- 30 PM his son Biren, aged about 35 years, was murdered in the village by his another son, Lakshmi Mondal, the accused. He said further that Biren was carrying water from Nayanjali by Baank to home and the accused was standing near an electric post with a bomb in his hand in front of the house of Haripada Sarkar and when Biren came there with water then Lakshmi hurled a bomb on Biren and the bomb exploded and entered inside the belly of Biren who at once fell down with injuries. Biren was taken to Jangipur Hospital and he succumbed to the injuries on the following day and on the same day the FIR was lodged.
In cross-examination he admitted that there was no bulb in the lamp-post but there were electric lamps at some houses in the village including the house of Haripada. He said further that electric light was not necessary to see the occurrence and recognise the assailant. He added that as soon as the bomb exploded and Biren fell down with the Baank, he rushed to him immediately as he was sitting from before near the place of occurrence. He gave out that he could not now see properly at night and he was a little hard of hearing. He denied the allegation that due to enmity with Lakshmi, he had implicated the appellant falsely in this murder case. From this suggestion put by the accused it was clear that Biren was murdered.
The statement of Chhabilal had been corroborated substantially by Malati Mondal and Fultusi Mondal.
PW 2 Malati, wife of the deceased Biren Mondal, said that her husband was murdered about one year back on 9th Pous, at about evening and she along with her daughter Fultusi was standing outside her house in the village while her husband was bringing water in Baank (Bahak) and accused Lakshmi was standing near the electric post in front of the house of Haripada Sarkar and he suddenly threw a bomb towards her husband who then came there with water in a tin. The bomb had hit her husband who fell down with profuse bleeding. She further added that there were electric lamps burning in the house of Haripada Sarkar. She further told that the villagers rushed to the spot on hearing the sound of bomb and they took her husband to Jangipur Hospital and her father-in-law went to the thana. She gave out that her husband was an accused in the murder case of Pankhi and accused Lakshmi was made an accused in the murder case of Chhedu and there was enmity between her husband and some of the villagers and that was compounded. She also denied that she had falsely implicated the accused in this case out of grudge.
P.W. 3 Fultusi, daughter of Malati and Biren, the deceased, fully supported the evidence of her mother and said that on the day of occurrence at about 5/5-30PM she was standing with her mother in front of their house in the village and her father was then carrying water from Nayanjali in tin by Baank (Bahak) and his uncle, Lakshmi, the accused, was standing in front of the house of Haripada Sarkar near an electric post and he suddenly had thrown a bomb on her father while he came near the electric post and her father received injuries from the bomb which exploded with wound and he fell down. In cross- examination she said that water was stored at Nayanjali and it was situated by the side of the road. She denied the suggestion that she gave false evidence on the instruction of her mother and grand-father.
P.W.4 Mahadeb Mondal, an inhabitant of village Ailer Upar, said that about one year ago in the month of Pous, in the evening, on a Saturday, Biren Mondal received severe injuries by bomb and he was called from his house by Krishna Mondal who hired his rickshaw van for taking Biren to Hospital and accordingly he carried Biren to Jangipur Hospital in his van. In cross- examination he told that he heard the sound of explosion of bomb from his house while he was taking food and he did not come out instantly as he was accustomed to hear such sounds in the village almost daily. He disclosed that Biren had many enemies in the village and there were hurling of bombs between him and his enemies on many occasions and it cropped up after the murder of Pankhi. He did not see PWs. 2 and 3 when Biren was taken on his rickshaw but he saw Chhabilal there. He did not ascertain how Biren received injuries by bomb. Biren's father, Chhabilal, told him how the injures were caused by bomb on Biren and Biren was then senseless.
It was argued that P.Ws. 2 and 3 were not present at the spot or in their house on the date of occurrence. But no such question was put to Mahadeb, Malati and Fultusi in their cross-examination. Mahadeb did not see P.Ws. 2 and 3 and it does not mean that they were absent from there. It was contended by the learned counsel for the State-respondent that after the occurrence many persons and neighbours might have reached there and Mahadeb was certainly busy for taking the injured to Hospital on his rickshaw van and naturally it was not possible for him to see and remember each and every individual who was present there. This explanation is plausible.
The aforesaid eye-witnesses have fully corroborated the prosecution version. They were cross-examined but nothing could be elicited in their cross- examination to discredit their testimony in relation to the material part of the prosecution case. They remained consistent with regard to the factum of incident.
The relationship in this case does not assume importance as these witnesses are related to both the deceased and the appellant. The defence has miserably failed to give any plausible and acceptable explanation as to why the father, wife and daughter of the deceased have falsely implicated the appellant sparing the real assailant.
Another circumstance also fixes the involvement of the appellant in the incident. The F.I.R. in the instant case was lodged promptly by the father of the appellant and the deceased.
On a conspectus of the evidence of the material witnesses, the evidence of the doctor and other surrounding circumstances, we are in complete agreement with the conclusion arrived at by the learned Trial Court. The judgment and orders of conviction and sentence passed by the learned Trial Court did not suffer from any illegality or impropriety to warrant interference.
In the result, the conviction recorded and the sentence imposed upon the appellant by the Trial Court are affirmed.
The appeal is accordingly dismissed.
The appellant is now in jail. He is directed to serve out the remainder part of his sentence as imposed against him by the learned Trial Court.
It is true that the appellant has been in judicial custody since 25.5.1989 that is more than 19 and half years. He may be around 58 years old now. This court has no jurisdiction to pass direction for commutation of sentence of imprisonment by converting it to one already undergone as submitted alternatively by the learned counsel for the appellant in course of argument before this Court. He may approach the appropriate Government with a prayer for commutation of the sentence if so advised.
If and when such a prayer is made, the same shall be considered in accordance with law.
Send a copy of this judgment to the Superintendent, of the concerned Correctional Home where the appellant is now under detention for information and necessary action.
Lower Court records with a copy of this judgment to go down forthwith to the Court of the learned Trial Judge for information and necessary action.
Urgent xerox certified copy of this judgement, if applied for, be supplied to the learned Counsel for the parties upon compliance of all formalities.
I agree. (Girish Chandra Gupta, J.)
(Kishore Kumar Prasad, J.)