Calcutta High Court (Appellete Side)
Hannan Mondal & Ors vs State Of West Bengal on 23 July, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 59 of 2016
Hannan Mondal & Ors.
-Vs-
State of West Bengal
With
C.R.A. 102 of 2016
Enai Malita
-Vs-
State of West Bengal
For the Appellants : Mr. Sudipto Moitra .. Sr. Advocate
[in both the appeals] Mr. Angshuman Chakraborty .. Advocate
Mr. S. S. Saha .. Advocate
For the State : Mr. Arun Kumar Maity .. Ld. Addl. Public Prosecutor
[in both the appeals] Mr. Sanjay Bardhan .. Advocate
Ms. Debjani Sahu .. Advocate
Heard on : 23.07.2018
Judgment on: 23.07.2018
Joymalya Bagchi, J. :-
Both the appeals are directed against the judgment and order dated 19th
January/20th January, 2016 passed by the learned Additional Sessions Judge,
Nabadwip, Nadia in Sessions Case No. 12 (11) 2011 [Sessions Trial No. IV
(March) 2014] convicting the appellants for commission of offence punishable
under Section 341 IPC, Sections 323/34 IPC and Sections 304/34 IPC and
sentencing them to suffer rigorous imprisonment for one month and to pay fine
of Rs.500/-, in default, to suffer rigorous imprisonment for 10 days more for the
offence punishable under Section 341 IPC, to suffer rigorous imprisonment for
one year each and to pay fine of Rs.1,000/-, in default, to suffer further rigorous
imprisonment for one month each for the offence punishable under Sections
323/34 IPC and to suffer rigorous imprisonment for life each and to pay fine of
Rs.10,000/-, in default, to suffer rigorous imprisonment for 21/2 years each for
the offence punishable under Sections 304/34 IPC; all the sentences to run
concurrently.
The prosecution case as alleged against the appellants is to the effect that
on 12th August, 2010 around 4:00 P.M. victim, Morsed Malita had an altercation
with the appellant no.1, in CRA 59 of 2016, Hannan Mondal over land dispute. A
scuffle ensued. Hearing the news, de-facto complainant, Innach Malita (P.W.1),
Asraf Malita (P.W.4) and Rajabul Malita (PW 5) rushed to the spot to save their
father. At that time appellant no.2, Najir Malita and appellant no.7, Hira Malita
hit their father with a fala on the front and back of his torso. Appellant no.8,
Rashid Malita dealt a chopping blow on his hand with a ramda. Other appellants
assaulted them with lathi, ramdao, rod etc. Their father was shifted to Nabadwip
State General Hospital by the local people and was undergoing treatment. Over
this issue Innach Malita (P.W.1) lodged written complaint against the appellants
resulting in registration of Nabadwip Police Station Case No. 212 of 2010 dated
12th August, 2010 under Sections 341/325/326/34 IPC. On the next day the
victim died and Section 304 IPC was added to the array of offences. Inquest and
post-mortem were held. Weapon of offence was seized and the appellants were
arrested. In conclusion of investigation, charge-sheet was filed against the
appellants under Sections 341/323/304/34 of the Indian Penal Code. The case
being a sessions triable one was committed to the Court of Sessions and
transferred to the Court of the Additional Sessions Judge, Nabadwip, Nadia for
trial and disposal. Charges were framed against the appellants under Sections
341/34 IPC, 323/34 IPC and 304/34 IPC. The appellants pleaded not guilty and
claimed to be tried. In the course of trial, prosecution examined 17 witnesses and
exhibited a number of documents. The defence of the appellants was one of
innocence and false implication. In conclusion of trial, the trial Judge by the
impugned judgment and order dated 19th January/20th January, 2016 convicted
and sentenced the appellants, as aforesaid.
Mr. Sudipto Moitra, learned senior advocate, along with Mr. Angshuman
Chakraborty, learned advocate, appearing for the appellants argued that the
genesis of the prosecution case has not been proved beyond reasonable doubt.
Place of occurrence has not been established. Independent witnesses who were
present at the place of occurrence have not been examined. Injuries on PW s 1, 4
and 5 have not been proved improbabilising their presence at the place of
occurrence. It is also doubtful whether other relation witnesses had seen the
incident. It is also argued that there was enmity between the parties and the
appellants were falsely implicated by introducing their names at the police
station while lodging FIR although the names of the assailants of the victim were
not stated before the doctor at the hospital. Seizure of the weapons is doubtful as
it was produced by one Ohab Malita, who has not been examined. Rajab Ali Sk.,
who brought the victim to the hospital has also not been examined. Hence, the
appellants are entitled to an order of acquittal.
Mr. Arun Kumar Maity, learned Additional Public Prosecutor along with
Mr. Sanjay Bardhan, learned advocate, appearing for the State, submitted that
the evidence of the eyewitnesses namely, PW s 1 to 7, are consistent to one
another and is supported by medical evidence of post-mortem doctor (PW 12) and
PW 15, who treated the victim at Nabadwip Hospital. He further argued that the
presence of PWs 1, 4 and 5 were noted in the FIR itself and in view of the fact
that the place of occurrence was near the residence of the victim, presence of the
aforesaid eyewitnesses who had rushed to the place of occurrence hearing the
hue and cry cannot be said to be unnatural and improbable. Hence, the appeal is
liable to be dismissed.
PWs 1 to 7 are the eyewitnesses in the instant case.
PW 1 is the informant and injured witness in the instant case. He deposed
that the incident occurred on 12th August, 2010 at about 5:00 P.M. There was
scuffling between his father and Hannan Mondal in front of Godkhali
Malithapara Mosjid. At that time Najir Malita assaulted his father with fala on
the chest. Hira Malita also assaulted him with fala on the backside just above his
waist. Rashid Malita assaulted him on the hand with ramda. Other accused
persons also assaulted his father. He tried to rescue him. His brothers, Asraf and
Rajabul, also came to the spot and they tried to rescue their father also. The
accused persons assaulted them. His father fell down to the ground after
receiving bleeding injuries. He was removed to Pratapnagar Hospital where he
died after admission. There was a dispute between their family and Hannan
Mondal with regard to the village road between the house of Hannan Mondal and
their khamar bari (barn house). The road was being encroached daily and
vehicles were unable to move down the road. He proved his signature on the
written complaint lodged at the police station (Exbt-1/a). After the death of his
father police held inquest over his dead body. He signed on the inquest report
(Exbt-2/a).
In cross-examination, he stated that Rajab Ali Sk. brought his father to the
hospital on the relevant day. Rajab Ali is the son of his pisi. They also came to
Nabadwip hospital. The hospital is half an hour from their residence. It takes
twenty minutes to go to the police station from the hospital on vehicle. At about
7:00 P.M. his father was admitted. His father did not tell to the doctor how he
received the injuries. He stated to the doctor who caused the injuries and in what
manner. The doctor wrote the same. His father died in the hospital five minutes
after admission. Written complaint was written at the police station. It was
written after Osman came to the police station. He denied the suggestion that the
case was fabricated in consultation with Osman as the accused persons belonged
to the rival group. He deposed that he was treated in the same hospital.
PW 2, Rexona Bibi, is the daughter-in-law of the victim. She is the sister-
in-law of PW 1. After hearing hue and cry she came to the place of occurrence
and found that there was scuffling between Morshed Malita and Hannan in front
of Mosjid situated in Godkhali, Malithapara. When she arrived at the place of
occurrence Innach Malita, Asraf Malita and Rajabul Malita had reached the place
while Khodbanu reached the spot with her. The accused persons were present at
the spot. Najir assaulted Morshed with fala on the chest. Hira assaulted Morshed
with a fala on the backside. Rashid assaulted on his left hand with a ramdao.
Her father-in-law died after admission in hospital.
In cross-examination she denied that she went to the hospital or told the
incident to the doctor.
PW 3, Khodbanu Bibi has substantially corroborated the evidence of PW 2
PW 4, Asraf Malita is another son of the victim. He deposed that on the
date of the incident upon hearing hue and cry he reached the Masjid of Malita
Para. His brothers, Innach Malita, Rajabul Malita, his sister Arjina bibi, his
boudis Rexona bibi and Khodbanu Bibi had also reached the place of occurrence.
He found Hannan Mondal was holding his father and threatening that he would
kill his father. The other accused persons were surrounding his father. They were
exhorting to kill his father. Najir assaulted him on left chest of his father by fala.
Hira assaulted him by fala on the backside of his body. His father fell down on
the ground. He was begging his life. At this stage, Roshid Malita assaulted him
with a ram da on his left hand. Other accused persons also assaulted his father
with lathi and iron rod. Local people assembled at the spot and the accused
persons left the spot. His father was taken to Pratapnagar Hospital by one vehicle
where he died after admission. There was a land dispute between themselves and
Hannan Mondal as the latter was encroaching on their land and they were
unable to take their carts through the land. In cross-examination, he was
confronted with his previous statement to the police.
PW 5, Rajabul Malita, is the son of the victim. He deposed that on the date
of the incident, there was an altercation between his father and Hannan Mondal.
The accused persons surrounded his father. At that time, Najir assaulted on left
chest of his father by fala. Hira assaulted his father with a fala on the backside of
his waist. His father fell down on the ground. Roshid assaulted him with a ram
da on the left hand. They begged for their father's life but the accused persons
assaulted him with lathi, fists and blows. His father was taken to Pratapnagar
Hospital. Five minutes after admission, his father died. In the morning of the
incident at 8.00 hours an altercation took place between his father and Hannan
Mondal over the issue of encroaching a pathway by Hannan Mondal which was
opposed by his father. Hannan threatened to kill his father.
In cross-examination, he stated that there were blood stains in the earth
where his father fell down. He could not say whether the police collected blood
stained earth or not. He stated that his father was not treated at Pratapnagar
Hospital. He did not state to police that they have a barn in front of the house of
Hannan Mondal.
PW 6, Arjina Bibi is the niece of the victim. She stated that when she went
to the place of occurrence on 12.8.2010 at 5.00 P.M. she saw Hannan had
caught hold of his uncle and they were scuffling with each other. Najir assaulted
his uncle with a fala. Hira assaulted with a fala on his back. Roshid assaulted
him on the hand by a ram da. Other accused persons assaulted his uncle by
fists, blows and lathi. Her uncle sustained bleeding injuries and fell down on the
earth. The victim was lifted and taken in a vehicle to hospital where he died.
In cross-examination, she stated that the place of occurrence is situated on
the southern side of the house of Akher Ali.
PW 7, Mohiruddin Malita is a nephew of the victim. He has corroborated
the evidence of PW 6.
In cross-examination, he stated that when quarrels started between his
uncle and Hannan and others, local people were present at the place of
occurrence.
PW 8, Osman Malita is the scribe of the first information report. He stated
that on 12.8.2010 at 5.00/5.30 P.M. he got information that his grandfather had
been taken to hospital. He reached the hospital after breaking Roja and came to
learn about his death. Thereafter he came to know from Innach Malita the names
of the accused persons which was stated in the first information report. He has
also signed in the inquest report. He signed on the seizure list, Ext.3/A.
In cross-examination, he stated that he was a Panchayat member of
Godkhali Malita Para. He was a Panchayat member for four times i.e. almost 20
years. In Sahayata Kendra of Nabadwip Police Station the complaint was written.
He was an accused in a case which was registered on 19.4.2013. He denied that
he had falsely implicated the accused persons.
PW 9, Basirul Malita is a post occurrence witness. He came to the place of
occurrence and found that the victim was lying with bleeding injuries. The victim
was taken to hospital in a vehicle. He reached the hospital and found the victim
dead. He put his signature on the inquest report.
PW 10, Ohab Malita is a son of the victim. He is a post occurrence witness.
He heard the incident from his Boudi Rexona Bibi, PW 2, Khodbanu Bibi, PW 3
and his sister Arjina, PW 6. Police reached the house at around 8.30/9.00 P.M.
About one and half month/two month earlier one fala with bamboo stick was
recovered from a bamboo bush near a ditch which is near the Masjid. The said
ditch is towards the back of the house of Najir. He was a signatory to the seizure
list.
PW 11, Abul Kalam Azad Khan was posted at Debagram under Kaliaganj
Police Station as A. S. I. at the material point of time. He drew up the first
information report.
PW 12, Dr. Ajit Kumar Biswas was posted as Medical Officer at Krishnagar
Hospital, Nadia. On13.8.2010 he held post mortem report over the dead body of
the victim. He found the following injuries;
1.Stitched injury (by nylon) on left axilla transversely measuring 2' and ½' X 1'into chest cavity deep (seen after removal of stiches).
2. Bruise mark on lateral side of upper part of left fore-arm measuring 1' X ½'.
3. Sharp cut penetrating injury on mid-line of back of chest obliquely at level of thoracic vertebrae no.7th and 8th measuring 2' and ½' X 1' into chest cavity deep.
4. Left lung puncture.
5. Right lung puncture.
According to him, the death was due to shock and haemorrhage resulting from above mentioned injuries which were antemortem and homicidal in nature.
PW 15 Dr. Partha Sarathi Ghosh is the other medical witness who had examined the victim Morshed Malita at State General Hospital as Medical Officer. He proved the injury report (Exbt 8).
PW 16 is the investigating officer in the instant case. He arranged for taking photographs of the victim by one photographer, namely, Raja Banerjee. He produced photographs in Court. He visited the place of occurrence and prepared sketch map with index (Exbt 9). He examined the witnesses. He conducted inquest over the dead body of the victim. He sent dead body of the victim through a constable, namely, Asim Das. He proved the inquest report (Exbt 2). He seized weapon of offence being Fala with bamboo fittings under a seizure list (Exbt 3). He identified the weapon of assault (Mat. Exbt1). He seized wearing apparels of the victim under a seizure list (Exbt 7). He submitted charge sheet. In cross-examination, he stated that he did not collect injury report of the informant Innach Malita, Rajabul and Asraf Malita. He did not send seized alamats for chemical examination. He did not examine the persons who were offering Namaj. One Ajit Kumar Saha was the informant of the UD case. Exact time of death of Morshed Malita could not be ascertained. He was cross examined with regard to the omissions in the previous statement of the witnesses vis-à-vis their deposition in Court.
PW 17, Raja Banerjee, is the photographer who took photographs as per direction of Investigating Officer (PW16). He proved the photographs (Mat Exbt. III) From the evidence on record particularly that of PWs.1 to 7, it appears that on the date of the incident i.e. 12.8.2010 there was an altercation between the victim Morshed Malita and the appellant Hannan Mondal over the issue of the latter encroaching on a path which prevented the bullock cart to move down the said road. Altercation took place at 10 A.M. in the morning. Around 5 P.M. in the evening, another altercation led to a scuffle between them. Hearing the hue and cry, the family members of both the parties rushed to the spot. While the other appellants being relations and/or associates of Hannan Mondal came to the spot with weapons, PWs 1 to 7, being relations of the victim, also rushed to the spot. Prosecution witnesses deposed that appellant no. 2, Nazir and appellant no. 7, Hira assaulted the victim on the front and back of his torso with a Fala resulting in grievous injuries. Appellant no. 8, Rashid assaulted him with a Ramda on the left hand. As a result the victim suffered bleeding injuries and fell down on the road. It is alleged that other appellants also assaulted the victim and his sons, that is, PWs 1, 4 and 5. The victim was shifted to Nabadwip State General Hospital and after admission was declared dead. Soon after the incident FIR was registered implicating the appellants in the alleged assault. It has been argued that the first information report was belatedly registered and that too upon consultation with PW 8 Osman Malita, a panchayat member. It is also suggested that Osman Malita was inimical to the appellants due to political reasons. I have given anxious thought to such contentions. I find that the victim had died shortly after 7 P.M. at the hospital. The distance between the hospital and the police station is around 20 minutes in a vehicle. FIR was registered at around 9.30 P.M. at night. There was about two hours' difference between the time when the victim died at the hospital and the registration of FIR. Promptitude with which the FIR was registered in the instant case rules out any possibility of false implication. It is argued that name of the assailants were not stated in the injury report (Exbt. 8). I find from the injury report that the victim had been brought by one Rajab Ali Sk., who is not an eye-witness. Although it is stated by PW 1 during cross-examination that he named the assailants to the doctor who recorded it, I find from the injury report (Exbt. 8) no name was recorded in the injury report as assailants of the victim. It is possible that being engaged in the last bid effort to save the victim, the doctor had neglected to record the names of the assailants in the injury report. However, since the FIR was promptly lodged within two hours of death of the victim, I am of the opinion that non-disclosure of names of the assailants in the injury report does not militate against the prosecution case. It has been argued that injuries on PWs 1, 4 and 5 had not been proved as their injury reports were not produced during trial. It has also been argued that there is confusion whether they were treated at the hospital as PW 5 stated that they were treated by a quack. It is true the injury reports of PWs 1, 4 and 5 have not been exhibited. However, their presence at the place of occurrence cannot be doubted merely on the score that the injury reports were not exhibited. The incident occurred in front of a Masjid which is situated near the house of the victim. A dispute was going on between the victim and Hannan Mondal from the morning of the fateful day. Upon hearing hue and cry, PWs 1, 4 and 5, the injured witnesses, and others rushed to the spot and witnessed the incident. The aforesaid facts and circumstances of the case have been clearly established probabilizing the presence of the said eyewitnesses at the place of occurrence. Hence I have no reason to disbelieve their evidence merely because the injury reports of PWs 1, 2 and 3 were not exhibited in the instant case. It has also been argued that there was enmity between the parties and there is a chance of false implication. In this backdrop it was incumbent on the prosecution to examine the independent witnesses to establish the guilt of the appellants. Learned Senior Counsel strenuously pointed out that evidence has come on record that independent witnesses who were present at the place of occurrence have not been interrogated. I find that the evidence of relation witnesses i.e. PWs 1 to 7 are corroborative of each other with regard to the roles played by the appellant nos. 2, 7 and 8, namely, Nazir Malita, Hira Malita and Rashid Malita in the assault of the victim. Their evidence is also corroborated by the medical evidence of PW 12, post mortem doctor. Accordingly I have no reason to disbelieve the version of the said eyewitnesses with regard to the roles of the aforesaid appellants on the score of non-examination of other local witnesses. However, coming to the role of other appellants, I note that the first information report does not disclose that they had assaulted the victim. It is pertinent to note that no other injury apart from injuries on the chest, back and left hand of the victim (which are relatable to assault by appellant nos. 2, 7 and 8) was noticed by post mortem doctor, PW 12 improbabilising assault on the victim by other appellants. The allegation that the said appellants had exhorted appellant nos. 2, 7 and 8 to kill the victim as deposed by PW 5 is an afterthought which was deposed for the first time in court. Allegation of assault by other appellants upon PWs 1, 4 and 5 is not corroborated by PW 2, an eye-witness. Injury reports of PWs. 1, 4 and 5 have also not been exhibited in the instant case. One cannot lose sight of the fact that there was pre-existing enmity between the two families. Disputes had cropped up between Hannan Mondal on the one hand and the victim on the other over encroaching on village path. It is possible that hearing hue and cry arising out of scuffling between Hannan and the victim, other appellants had rushed to the spot to save Hannan. Their participation in the assault on the victim has not been established in the instant case. Even the assault by them upon PWs 1, 4 and 5 is not supported by PW 2, an eye-witness or medical evidence. Hence, it is doubtful whether the other appellants (apart from appellant nos.2, 7 and 8 in CRA 59 of 2016) had come to the place of occurrence to assault the victim and shared the common intention to kill him. As discussed earlier, they may have rushed to the spot to save Hannan who was involved in a scuffle with the victim. Accordingly, I am inclined to extend the benefit of doubt to the said appellants in the facts of the case. The arguments with regard to improbability of seizure of the weapon of assault and the failure to send the said weapon for forensic examination are defects in investigation, which in the face of the consistent version of eye witnesses vis-à-vis the role of appellant nos.2, 7 and 8, namely, Najir, Hira and Rashid in the murder of the victim as supported by medical evidence, does not cause a dent in the prosecution case. Place of occurrence has also been established to be in front of the 'Masjid' near the house of the victim. Hence, I am unwilling to accept the defence version that the prosecution has not been able to prove the manner and course of the incident resulting in the death of the victim beyond reasonable doubt. However, for reasons as discussed earlier, I am inclined to extent the benefit of doubt to the other appellants apart from appellant nos.2, 7 and 8 in CRA 59 of 2016. There is no evidence as to their participation in the assault on the victim and the possibility of their false implication owning to the pre-existing enmity between the parties as aforesaid cannot be wholly ruled out. In view of the above discussion, conviction of appellant nos.2, 7 and 8 in CRA 59 of 2016, namely, Najir Malita, Hira Malita and Rashid Malita is upheld. Conviction and sentence of appellant nos. 1, 3, 4, 5 and 6 in CRA 59 of 2016 and the appellants in CRA 102 of 2016, namely, Hannan Mondal, Hansu Malita, Subadh Malita, Samajul Malita, Rashid Malita and Enai Malita are set aside.
Coming to the issue of sentence, I find that the incident occurred over encroachment of a village path. The appellant nos.2, 7 and 8 do not have criminal antecedents. Though they intended to inflict injuries which are likely to cause death and had resulted in the death of the victim, it cannot be said that they acted in a cruel or unusual manner. Hence, I modify the sentence imposed on the appellant nos.2, 7 and 8 in CRA 59 of 2016, namely, Najir Malita, Hira Malita and Rafikul Malita for commission of offence punishable under Sections 304/34 of the Indian Penal Code and I direct that they shall suffer rigorous imprisonment for 14 years each and shall pay a fine of Rs.10,000/- each in default to suffer rigorous imprisonment for 2½ years more for the offence punishable under Sections 304/34 I.P.C. Sentence in respect of other offences shall remain unaltered. All the sentences shall run concurrently.
The appeal is accordingly disposed of.
Period of detention suffered by the appellant nos. 2, 7 and 8 in CRA 59 of 2016, namely, Najir Malita, Hira Malita and Rashid Malita during investigation, enquiry and trial shall be set off from the substantive sentences imposed upon them in terms of section 428 of the Code of Criminal Procedure.
Appellant nos. 1, 3, 4, 5 and 6 in CRA 59 of 2016 and the appellants in CRA 102 of 2016, namely, Hannan Mondal, Najir Mondal, Hansu Mondal, Samajul Malita, Rafikul Malita and Enai Malita be forthwith released from custody if not wanted in any other case.
Copy of the judgment be sent down to the trial court at once for necessary action.
Urgent Photostat Certified copy of this judgment, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)