Calcutta High Court (Appellete Side)
Dhiren Mondal & Others vs The State Of West Bengal on 10 March, 2017
Author: Samapti Chatterjee
Bench: Nadira Patherya, Samapti Chatterjee
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Nadira Patherya
And
The Hon'ble Justice Samapti Chatterjee
C.R.A 334 of 2013
Dhiren Mondal & Others
Vs
The State of West Bengal
For the Appellants
Nos.1,2,4 and 5 : Mr. Prabir Kr. Mitra, Advocate
Ms. Ujjaini Chatterjee, Advocate
Mr. Pinak Mitra, Advocate
Mr. Sushanta Mukherjee, Advocate
Ms. Sonali Bhar, Advocate
For the Appellant
No.3 : Mr. Sabir Ahmed, Advocate
Mr. Sk. Saibuddin, Advocate
Mr. Abdur Rakib, Advocate
For the State : Mr. Manjit Singh, Learned P.P
Mr. Ranadeb Sengupta, Advocate
Mr. Pratick Bose, Advocate
Heard on :19.07.2016, 20.07.2016, 25.07.2016,
26.07.2016, 28.07.2016, 02.08.2016, &
04.08.2016
Judgment on : March 10, 2017.
Samapti Chatterjee, J.
1. This appeal is directed against the order of conviction and sentence of the Additional Sessions Judge, 2nd Fast Track Court, Malda passed in Sessions Trial No.9 of 2010 on March 13, 2013 and 14th March 2013 respectively. All the appellants have been found guilty and have been convicted under Section 302 read with Section 34 of the Indian Penal Code. They have also been convicted under Section 201 read with Section 34 of the Indian Penal Code, and sentenced to suffer Rigorous Imprisonment for life with fine of `10,000/- (Rupees Ten Thousand only) each. In the event of failure to pay fine they have been directed to suffer rigorous imprisonment for a further period of five months. The convicts are further sentenced to suffer rigorous imprisonment for three years with fine of `3000/- (three thousand only) each. In the event of failure to pay fine they have been further directed to suffer rigorous imprisonment for three months each for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code.
2. The case of the prosecution in brief is as follows :-
On 03.06.1995 at about 7 p.m. the father of the defacto complainant (since deceased) namely Suren Mondal was grinding the paddy at Subhas Mondal's Khailan alongwith Putul Mondal, Kartik Mondal and Lalita Mondal and at that time a quarrel cropped up in between the father of the complainant and Lalita Mondal and when Lalita Mondal informed about the said incident to her brothers then the brothers of Lalita Mondal namely Niren Mondal, Biren Mondal, Sagar Mondal, Dhiren Mondal, Prasadi Mondal, Ramesh Mondal and Ranajit Mondal and others took away his father to the side of Ganges and thereafter his father did not come back. It has been apprehended in the written complaint that Suren Mondal was murdered and his body was thrown into the river Ganges.
On the basis of the written complaint lodged by the defacto complainant Manikchak P.S case no.29 of 1995 dated 03.06.1995 was started under Sections 364/120B/34 of the Indian Penal Code against the accused persons/appellants. Subsequently Sections 302/201/34 of the Indian Penal Code were added. Investigation was undertaken by the Investigating Officer and in the course of investigation the appellants were arrested. soon thereafter. Charge-sheet was submitted and the appellants were charged for having committed the offence punishable under Sections 364/120B/302/201 read with Section 34 of the Indian Penal Code . The said charge was read out to them to which the appellants pleaded not guilty and claimed to be tried. Trial was initiated before the Sessions Court. Documentary and oral evidence was adduced, the appellants were also examined under Section 313 of the Cr.PC and on considering the aforesaid , the Sessions Court found them guilty of the offence punishable under Sections 302/201/34 of the Indian Penal Code and convicted and sentenced them to life imprisonment and fine.
3. In order to establish the charge against the appellants the prosecution relied on as many as 17 (seventeen) witnesses. P.W.1 was the son of the victim and P.W.5, P.W.7 and P.W.8 were the eye witnesses who had partly seen the incident. P.W.9 was the nephew of the victim. They are all relatives and interested witnesses.
Out of 17 witnesses, P.W.2, P.W.3, P.W.4, P.W.6, P.W.10, P.W.12 & P.W.16 were declared hostile witnesses. P.W.11 was the brother of the photographer. P.W.13 & P.W.14 said nothing. P.W.15 was the recording officer who received the written complaint and initiated the case. P.W.17 was the Investigating Officer of the case.
4. Learned Counsel for the appellants submitted that the Trial Court had erred in convicting and sentencing the appellants. Initially as one injury was mentioned in the charge the case was initiated under Section 364 of the Indian Penal Code.
5. Learned counsel further strongly urged that a deadman can not be killed twice. He also emphasized his arguments on the points that the prosecution case is totally based on interested and blood related witnesses like P.W.1, P.W.5, P.W.7, P.W.8 and P.W.9, no independent witnesses were examined. In support of his contention Learned counsel relied on a decision reported in 2002 SCC (Cri) Page-350 Paragraph-19 (State of Haryana vs Ram Singh).
6. Learned Counsel further contended that prosecution failed to send the seized articles like control earth /blood stained earth and loongi of the deceased for FSL examination though seizure list was prepared on 4th June, 1995 (Exbt.10) In support of his contention Learned Counsel relied on decisions reported in AIR 1976 SC Page-2263 Paragraph-13 (Lakshmi Singh and Others etc vs State of Bihar), 2003 SCC (Cri) Page-801 Paragraph-12 (Suresh Chaudhary vs State of Bihar) and 2003 SCC (Cri) Page-1965 Paragraph-21 (State of Rajasthan vs Raja Ram).
7. Learned counsel further pointed out that some witnesses deposed that about 70/80 persons assembled at the place of occurrence and some witnesses said that there were only 7/8 people, therefore, Prosecution's case is full of discrepancy. The said persons were also not examined.
8. Learned counsel further pointed out that P.W.17, the Investigating Officer deposed that the photographer took the photograph of the deceased but neither the photographer was examined nor any photograph was produced before the Court by the prosecution, on the other hand, the photographer's brother was produced before the Court by the prosecution and his evidence should not be looked into. In support of his contention learned counsel relied on decisions reported in 1987 C Cr. LR (SC) Page-173 Paragraph-10 (Amar Singh & Ors vs The State of Punjab) and 1987 C. Cr. LR (Cal) Page-251 Paragraphs-18, 19, 21 (Mihir Kumar Mondal @ Mihir Mondal & Ors vs The State of West Bengal) .
9. Learned counsel also vehemently urged that the prosecution's case was unbelievable and at the same time full of inconsistencies and discrepancies. In support of his contention learned counsel relied on decisions reported in 1997 SCC (Cri) Page-857 Paragraphs-11 and 12 ( Vijender vs State of Delhi) and AIR 2011 SC Page-200 Paragraph-11 (Paramjeet Singh @ Pamma vs State of Uttarakhand).
He further emphasized that it is evident from the post mortem report that the body was decomposed, and could not be identified even by the son of the victim. In support of his contention Learned counsel relied on decisions reported in 2016 (1) AICLR Page-752 (S.C) Paragraph-48 (Rajiv Singh vs State of Bihar & Another) and 2012 (5) CHN (CAL) Page-135 Paragraphs-18, 19 and 23 (In the matter of :
Bipta Kharia).
10. Learned counsel also pointed out that all the documents like seizure list, inquest report as well as post mortem report were produced in carbon copy but originals of those documents were not produced. Secondary evidence ought to be relied on if primary evidence is available. He thus submitted that the Court should not rely upon the copies of those documents. In support of his contention learned counsel relied on decision reported in AIR 2004 SC Page-4082 Paragraph-13 (Smt. Dayamathi Bai vs K.M. Shaffi).
11. Learned counsel for the appellants further vehemently urged that P.W.1 deposed that he came to know about the incident from the fisherman but fisherman who is a material witness was not examined. Therefore, evidence of P.W.1 should not be given any credence.
Learned counsel also drew our attention to Section 60 of the Evidence Act and emphasized his argument that since the fisherman was not examined by the prosecution therefore the evidence of P.W.1 should be ignored by the Hon'ble Court.
He further emphasized that P.W.1 identified his father's beheaded body and the cut head and also deposed that one fisherman saw the beheaded body of his father (victim). Learned counsel also pointed out that P.W.1 is not only a hearsay witness but also a post occurrence witness. He received the information from his Boudi (P.W.8) and P.W.1 further deposed that Ganga is 3 km away from the village, wherefrom the victim's beheaded body and the cut head were recovered. In support of his contention Learned counsel relied on decision reported in AIR 1983 SC Page-906 Paragraph-13 (Bhugdomal Gangaram and Others etc vs The State of Gujrat).
12. Learned counsel for the appellants further contended that P.W.5 gave evidence before the Magistrate under Section 164 of the Cr.P.C. but that Magistrate was not examined by the prosecution. Therefore, evidence of P.W.5 can not be given any weightage by this Hon'ble Court.
13. Learned counsel also contended that P.W.7 saw that some persons were assaulting Suren Mondal (victim) and then she came to her home and explained the incident to her husband P.W.8. P.W.8 deposed that the incident took place at about 6 to 6:30 p.m. on 03.06.1995 and she narrated the incident to P.W.1, the son of the victim when he came home. But, only on 3/6/95 after 10 p.m. P.W.1 lodged complaint with the Police Station.
14. Learned counsel further contended that P.W.5, P.W.7, & P.W.8 all have partly seen the incident when Suren Mondal (victim) had been assaulted by some persons but no one saw that Suren Mondal (since deceased) was murdered by the accused persons. P.W.9 deposed that victim was carried towards river Ganga by some persons.
15. Learned counsel for the appellants also pointed out that P.W.17, the Investigating Officer deposed that though he visited the place of occurrence on 03.06.1995 but he recorded the statement of the witnesses under Section 161 Cr.P.C. on the next date i.e. on 04.06.1995. On the point of belated recording of statement learned counsel relied on decisions reported in AIR 1976 SC Page-2488 Paragraph-2 (State of Orissa vs Brahmananda Nanda), 2004 SCC (Cri) Page-2032 Paragraph-4 (Vijayabhai Bhanabhai Patel vs Navnitbhai Nathubhai Patel And Others).
16. On the point of delay in sending the FIR to the Magistrate learned counsel submitted that FIR was lodged on 03.06.1995 but it was sent to the Learned Magistrate on 06.06.1995, that delay was not explained by the prosecution. In support of his contention Learned counsel relied on decisions reported in 2003 Supreme Court Cases (Cri) Page-751, Paragraphs-14 and 15 (Rajeevan And Another vs State of Kerala), 2003 SCC (Cri) Page-801 Paragraph-9 (Suresh Chaudhary vs State of Bihar) and 2004 SCC (Cri) Page-1425 Paragraph-9 (Kunju Muhammed @ Khumani And Another vs State Of Kerala).
17. Learned counsel further argued that conduct of the witnesses like P.W.7 and P.W.8 are not believable though both of them claimed to be eye witnesses as P.W.8 deposed that she tried to chase those miscreants when they abused her in filthy language and threatened to kill her and P.W.7 deposed that she left the place of occurrence out of fear. In support of his contention he relied on a decision reported in 2003 SCC (Cri) Page-1514 Paragraph-23 (Mohan Singh vs Prem Singh And Another).
18. Learned counsel further argued that non-examination of material witnesses like fisherman, post-mortem doctor, photographer, constable (who brought the deadbody of the deceased) suggests that prosecution failed to prove its case beyond all reasonable doubt. In support of his contention Learned Counsel relied on decisions reported in 1992 SCC (Cri) Page-701 Paragraph-4 (Bhupendra Nath Prasad vs State of Bihar) and AIR 1976 SC Page-2423 Paragraph-6 (Ishwar Singh vs The State of Uttar Pradesh).
Before parting with his argument, learned counsel submitted that appeals should be allowed, by giving benefit of doubt to the appellants.
19. Mr. Sabir Ahmed, learned Advocate appearing for the appellant no.3 adopted the submissions advanced by Mr. Mitra who appeared for the other appellants and submitted that appeals should be allowed as the prosecution miserably failed to prove its case beyond benefit of doubt. The appellant no.3 was nota FIR named accused person. P.W.1 got information from P.W.8 (boudi), P.W.1 also did not say that he and P.W.8 met Uttam (P.W.9). P.W.1 and P.W.9 dod not mention meeting each other. Therefore cannot be relied on. Kartick and Haren have also not been examined. P.W.7 (Putul) has stated in cross- examination that the incident took place at dark night, if that be so, then P.W.7 could not have identified the persons. P.W.5 was a student of Class-IV on the date of incident. His evidence is not creditworthy as it was full of contradictions. The postmortem report has not been proved and does not reflect any fracture, has only mentioned Achar. The Postmortem Doctor has not been examined and the recovery of the dead body has not been proved. Although 7-8 people assembled at the place of occurrence but none stopped the assault. P.Ws 1,5,7, 8 and 9 cannot be relied upon as they each have contradicted others.
20. Per contra, Mr. Manjit Singh, learned Public Prosecutor appearing for the State strongly argued that there may be some contradictions in the evidence of the witnesses as some negligible lacuna on the part of the prosecution in handling the case for that prosecution case cannot be frustrated.
21. Mr. Singh further contended that it was the case of the defence that FIR does not contained charge of murder. Against that argument learned counsel appearing for the state submitted that FIR maker P.W.1 was not an eye witness. He further contended that there is no delay at all in making FIR as the P.W.1, son was busy in searching the body of his father (victim). Only on 5th June, 1995 the beheaded body and cut head of the victim was recovered and identified by the P.W.1 (son of the victim). Therefore, counsel for the prosecution submitted that there was no delay in sending the FIR and in support of his contention he relied on a Supreme Court decision reported in 2013 (7) SCC Page-629 Paragraphs 19, 20 (Manga @ Man Singh vs State of Uttarakhand).
22. Learned counsel for the state further contended that the evidence, of P.W.1, P.W.3 (neighbour) corroborated with each other. Furthermore, P.W.5, P.W.7 and P.W.8 also saw that Suren Mondal was assaulted by the accused. Thereafter, he was taken towards the river Ganga. He submitted that since initially it was a case of abduction, so it is the obligation on the part of the appellants to prove what had happened after abduction. In support of his contention the prosecution counsel relied on a decision reported in 2000 (8) SCC Page-382 Paragraphs-35 to 39 (State of W.B vs Mir Mohammad Omar And Others) and he also relied on decisions reported in 2001 (4) SCC Page-375 Paragraphs-15, 16, 17, 18, 19 and 20 ( Sucha Singh vs State of Punjab) and 2012 (1) SCC Page-10 Paragraphs-53, 59 (Prithipal Singh And Others vs State Of Punjab And Another).
He also drew our attention to Section 106 of the Evidence Act.
23. After demolishing the argument advanced by the defence counsels, regarding post mortem report Mr. Singh relied on a Supreme Court Three Bench decision reported in AIR 1980 (SC) Page-1883 Paragraph-42 (H.S. Bains vs The State (Union Territory of Chandigarh)).
24. Against the argument of the defence counsels on the point of interested witnesses prosecution counsel vehemently urged that evidence of the interested witnesses cannot be ruled out only on the ground that they are relatives of the victim. In support of his contention he relied on the Apex Court decision reported in 2012 (2) SCC Page-273 Paragraph- 7 (Onkar & Anr. Vs State of U.P).
25. On the point of motive prosecution counsel relied on a decision reported in AIR 1976 (SC) Page-2499 Paragraph-11 (Molu and others vs State of Haryana).
26. After demolishing the argument advanced by the defence counsel on the point of defective investigation the prosecution counsel relied on an Apex Court decision reported in 2010 (9) SCC Page-567 Paragraph-55 (C. Muniappan And Others vs State of Tamil Nadu) and emphasized his argument that on mere alleged defect in the investigation conviction cannot be overruled.
27. Upon scanning the evidence before us it is apparent that P.W.1 claimed that he identified his father's (deceased Suren Mondal) beheaded body and cut head. P.W.5, P.W.7, P.W.8 saw the appellants assault the victim.
P.W.1 in his evidence has deposed that he was told by P.W.8 that his father was assaulted by the brothers of Lalita and two other persons. P.W.1 was further informed by P.W.8 that on that day his father went to the Khailan of Subhas Mondal to thrash paddy along with other persons namely Kartick Mondal, Putul Mondal and Lalita Mondal there they had an altercation with Lalita and Lalita informed such altercation to her brothers namely Niren, Biren, Dhiren, Sagar and Prasadi Mondal and other two persons namely Ramesh and Ranjit who came there. P.W.1 was further told by P.W.8 that those brothers of Lalita along with Ramesh and Ranjit assaulted his father and thereafter they took his father away towards river Ganga.
After gathering such information from his Boudi (P.W.8) P.W.1 set- out to search for his father till 10 P.M. at night but he failed to trace his father. It was only thereafter, that he went to Manikchak Police Station alongwith Uttam Mondal (P.W.9) and lodged a written complaint on 03.06.1995. The written complaint is marked as Exbt.1 and after receiving the same police came to the village for investigation and two days after the incident i.e. 5th June, 1995 the beheaded body of his father was found in the river Ganga. Subsequently the cut head was also found at the south corner of that place.
The distance between the beheaded body and the cut head was about 50-60 metres as per P.W.1's version.
P.W.1 also identified Niren, Dhiren, Sagar, Prasadi and Khitish Mondal in the Court room (Biren Mondal and Ramesh Mondal had already died) and Ranjit Mondal and Lalita Mondal were not present in Court on that day.
P.W.1 also in his cross examination deposed that one fisherman saw the beheaded dead body and cut head of his father for the first time and informed the same in their village.
28. P.W.5 was the grand son-in-law and also an eye witness to the incident. He deposed that the incident of assault took place on 03.06.1995 at about 6:30 p.m. in a football ground near Khailan of Binoy Mondal. He was feeding buffalo, at that time and on hearing some noise he went there and found Biren, Niren, Dhiren, Sagar, Prasadi, Khitish, Ramesh and Ranjit Mondal assaulting Suren Mondal by kicking, beating and thrashing him. At that time Suren was asking for 'water' while one person went to fetch water and after that Sagar washed the face of Suren Mondal. Thereafter Ranjit Mondal and other miscreants dragged Suren Mondal and took him towards the river Ganges.
It is P.W.5 who identified Dhiren, Niren, Sagar, Khitish and Prasadi Mondal in Court. He further deposed that subsequently he came to know that Suren Mondal was murdered by cutting his head from his body and he also deposed that he was interrogated by the Magistrate which was recorded under Section 164 Cr.P.C. (Exbt-5/1 and 5/2).
P.W.5 also deposed that at the time of assault on Suren Mondal Mira Mondal, Prabir, Putul, Kartick and others were present there.
In his cross-examination P.W.5 deposed that at the time of incident he was a student of Class-IV and was aged about 11/12 years.
29. P.W.7 is a relative and an interested eye witness who deposed that on 03.06.1995 while Suren along with Kartick, Parbati, Lalita was thrashing paddy in the Khailan of Subhas Mondal which was near the football ground then at about 7 p.m. in the evening Biren, Ramesh, Lalita took away Suren Mondal from the said Khailan at a distance of about 20/22 cubits. After taking away Suren Mondal they started to assault him along with other 7/8 persons.
P.W.7 also deposed that after observing the incident she returned home out of fear and narrated the entire incident to her husband and thereafter her husband went to the place of occurrence. She also deposed that after 2/3 days she came to know that the beheaded body and the cut head of Suren was found by the side of the river. She also deposed that she narrated the entire incident before the concerned Magistrate in Malda which had been recorded under Section 164 Cr. P.C.
30. We find that P.W.8 being an eye witness deposed that she is the Boudi of P.W.1 (wife of Bhupati Mondal) and she further deposed that the said incident of murder of her father-in-law took place on 03.06.1995 when Suren Mondal went in the morning to harvest paddy in the Khailan of Subhas Mondal.
She also deposed that after preparing food in the evening at home she went to Khailan of Subhas Mondal (which is near to the football ground) to call her father-in-law (Suren) to have food. On reaching there she found that Biren, Dhiren, Niren, Prasadi, Sagar, Ranjit, Khitish and Ramesh had surrounded her father-in-law (Suren Mondal) and were assaulting him at a distance of 20/22 cubits from the said Khailan. She further deposed that while Suren was being assaulted by those persons he was shouting for drinking water. But the assailants continued to assault her father-in-law and thereafter they dragged him by holding his shoulder towards the river Ganga in the west. She tried to chase those miscreants following them but they abused her with filthy languages and threatened to kill her.
Thereafter she returned home and when P.W.1, her brother-in-law came home she narrated the entire incident to him. Thereafter, she along with P.W.1 proceeded towards Durga Mondap. On the way they met Uttam Mondal ,Satish Mondal and she also narrated the incident to them. After that P.W.1 and P.W.9 Uttam went to the police station and she returned home.
P.W.8 also deposed that after two days the beheaded body of her father-in-law was found near the river Ganga and his cut head was also found at another place by the side of river Ganga. Subsequently when police came to their residence she narrated the entire incident to the police.
She identified Niren, Khitish, Prasadi, Dhiren and Sagar in the Court room. She also deposed that Biren and Ramesh Mondal had already died. She also deposed that she knew Ranjit Mondal and Lalita but they were absent in the Court on that day.
In her cross-examination she deposed that she returned first and thereafter P.W.7 Putul returned. She also deposed in her cross- examination that she, Putul and others reside adjacent to each other.
31. P.W.9, the nephew of the deceased Suren Mondal was a post- occurrence witness. In his deposition he stated that he worked as a cycle repairing mechanic. On the date of incident he was informed by one Ashoke Pramanik at the house of Thakurdas that his uncle Suren Mondal was murdered. After gathering such information P.W.9 along with Satish Mondal proceeded towards the residence of Suren Mondal by two separate cycles when they met his boudi Mira Mondal (P.W.8) and P.W.1 the son of his uncle namely Chaitanya Mondal and they were told that Suren Mondal (uncle) was murdered by Niren, Dhiren, Biren, Sagar, Prasadi, Khitish, Ramesh and Ranjit as they assaulted him and dragged him towards the river Ganga situated on the western side of the Khailan. After hearing the same P.W.9 and Satish went to Durga Mondap of Paschim Narayanpur and they saw Niren was narrating something to Gopal Master and Naresh Mondal. When P.W.9 reached there then accused Niren came and confessed that he had done a blunder and he also confessed that he along with all his brothers assaulted Suren and cut his head and threw him into the river Ganga. He also stated that Suren could not be found. Niren also asked them to forgive him and after that he (Niren) fled away as the persons present there, after hearing such confessional statement of Niren started shouting.
Thereafter P.W.9 along with Satish Mondal came to one Ashoke Mondal's place and narrated the entire incident to him and Ashoke Mondal advised them to go to police station. Being so advised P.W.9 along with P.W.1 Chaitanya went to Manikchak Police Station and Chaitanya Mondal lodged a written complaint there and subsequently after two days of the said incident the beheaded body and the cut head of Suren Mondal was found near the river Ganga.
The statement of P.W.9 was also recorded by the Learned Magistrate under Section 164 Cr.P.C (marked as Exbt.6/1).
P.W.9 also deposed that Niren confessed his guilt before them on that night at about 8:30/9 p.m.
32. P.W.17, Sukumar Saha was the Investigating Officer of the case. In his deposition he stated that on 03.06.1995 he only visited the football ground wherefrom the victim (Suren Mondal) was kidnapped . On the next day i.e. on 04.06.1995 he examined the available witnesses and recorded their statements under Section 161 Cr.P.C.. He also prepared the rough sketch map of the place of occurrence and seized some paddy and straw and prepared a proper seizure list.
P.W.17 further deposed that he made a requisition for photographer. Thereafter with the photographer he went to Paschim Narayanpur near Ganga. There he found that the body without head floating in the river at Ganga on eastern side and the head was found lying at a distance of about 200 metres from the beheaded body. He prepared inquest report over the beheaded body and the cut head in presence of other witnesses and got photographs of the beheaded body and cut head. He also sent the dead body along with the cut head to the morgue of Malda Sadar Hospital for post mortem examination through Constable No.412 namely Sunil Kumar Das along with deadbody challan and inquest report.
P.W.17 further deposed that thereafter he came to Paschim Narayanpur village and there he examined the available witnesses and recorded their statements under Section 161 Cr.P.C. and made a prayer before the Learned Court of SDJM Malda for adding Section 302 and 201 of the Indian Penal Code. That prayer was allowed by the Learned Court.
P.W.17 also collected two post mortem reports relating to the cut head and the beheaded body. Thereafter he submitted charge-sheet under Sections 364/120B/302/201/34 of the Indian Penal Code against nine accused persons namely (1) Biren Mondal, (2) Niren Mondal, (3) Sagar Mondal, (4) Dhiren Mondal, (5) Prasadi Mondal, (6) Ramesh Mondal, (7) Khitish Mondal, (8) Ranjit Mondal and (9) Lalita Mondal vide CS no.82 of 1995 dated 24th December, 1995 and he identified the carbon copy of the inquest report of the beheaded body of the victim prepared and signed by him (marked Exbt.2) and also identified the carbon copy of the inquest report of the cut head of victim Suren Mondal prepared, signed by him (marked Exbt.3). He also identified a seizure list relating to the seizure of shrub from the place where the cut head was found (marked Exbt-4) and another seizure list dated 04.06.1995 relating to the seizure of paddy, straw etc (marked Exbt.9). He also identified the seizure list dated 4th June, 1995 relating to the seizure of Loongi, blood stained earth, bamboo stick prepared and signed by him (marked Exbt.10). He also identified the rough sketch map of the place of occurrence near football ground (marked Exbt-14) and also identified carbon copies of the dead body challans relating to the beheaded body and cut head of victim Suren Mondal prepared and signed by him (marked Exbt.15). He identified the carbon copy of post mortem reports (marked Exbt-17 with objection).
P.W.17 also submitted memo of evidence and charge-sheet against nine accused persons namely (1) Biren Mondal, (2) Niren Mondal, (3) Sagar Mondal, (4) Dhiren Mondal, (5) Prasadi Mondal, (6) Ramesh Mondal, (7) Khitish Mondal, (8) Ranjit Mondal and (9) Lalita Mondal. He recorded statements of Parbati Mondal under Section 161 Cr.P.C. who became hostile. He deposed that Parbati Mondal in her statement said that after hearing shouts of victim Suren Mondal she along with others left their work of thrashing paddy and went nearer to the Khailan and saw that Niren, Dhiren, Sagar, Prasadi, Biren, Khitish, Ramesh, Ranjit were assaulting Suren Mondal and after hearing shout of victim (Suren Mondal) many persons assembled there. Then Biren, Niren and Dhiren with bamboo stick threatened them that if anyone would say anything to anybody then he or she would be killed. This witness ( P.W.2) has been declared hostile by the prosecution.
We find that P.W.17 also deposed that he examined one Naresh Chandra Mondal and recorded his statement under Section 161 Cr.P.C. who stated before him that on that date at about 9 p.m. Niren Mondal of Paschim Narayanpur village wearing loongi with bare body hurriedly came and told that they murdered Suren Mondal which was a mistake on their part and his body could not be recovered and he asked them to forgive him. He also stated before P.W.17 that at that time Uttam Mondal and Satish Mondal came there who also heard the same. The said Naresh Chandra Mondal also in his statement under Section 161 Cr.P.C. stated before P.W.17 that dead body was thrown into the river Ganges and when Satish Mondal demanded the dead body from Niren Mondal, Niren Mondal told that dead body could not be found and prayed for mercy.
P.W.17 also deposed that he recorded the statement of Ramchandra Mondal and Gopal Chandra Mondal. Gopal Chandra Mondal stated before him that Niren Mondal told that they committed a mistake by killing Suren Mondal and Niren Mondal also prayed to forgive them. Gopal Chandra Mondal also submitted before P.W.17 that at that time Uttam Mondal and Satish Mondal also came there and they also heard it from Niren Mondal.
It is evident that P.W. 17 in his cross-examination stated that though he reached the place of occurrence on 3rd June, 1995 at about 23.45 hours but as it was late night he could not visit the place of occurrence and he visited the place of occurrence on 4th June, 1995 and examined the witnesses on the same date at about 12.25 p.m. and in the morning at about 5.15 a.m. he visited the place of occurrence and seized some paddy, some straw, control earth, blood stained earth, bamboo, lathi, one check loongi at some distance from the place of occurrence.
33. On the rival submissions and evidence noted above we now proceed to decide the case. There can be no dispute that the deceased Suren Mondal died a homicidal death. Now the question is, whether the prosecution has been able to connect the present appellants with the alleged crime.
34. On a close and critical reading of the evidence both oral as well as documentary with meticulous care we find 3 eye witnesses vig. P.W.5, P.W.7 and P.W.8 whose evidence is corroborated with the F.I.R. We also cannot ignore the fact that a dispute cropped up between Lalita, the sister of the accused persons and the deceased at Khailan of Subhas Mondal. Lalita informed her brothers vig. the accused who according to P.W.7 called out to the victim, took him a distance from the Khailan and assaulted him. It is also evident from the testimony of eye witnesses (P.W.5, P.W.7 and P.W.8) that the accused persons assaulted and beat the victim Suren Mondal. Thereafter they dragged him towards the river Ganga holding him by shoulder on 03.06.1995.
P.W. 5 was a student of Class-IV on the date of incident. He in cross-examination has stated the victim was assaulted on the eastern side of the ground by the accused person like thrashing paddy, for about 10/15 minutes and that the accused person dragged the victim by his hand. This victim is truthful and trustworthy as he truthfully mentioned the names of persons who stayed around the ground. P.W.7 has also stated of assault on the victim and although defence in cross- examination extracted from the witness that the incident took place at dark night but failed to upset the testimony of assault. P.W.8's evidence regarding assault remains unshaken and was put only as a suggestion which was denied by the witness.
We also cannot shut our eyes to the fact that the beheaded body and the cut head were recovered from the river bed though it is argued by the defence counsel that body was decomposed. We cannot also ignore the testimony of P.W.1 the FIR maker, son of the deceased that he identified the beheaded body and the cut head of his father on 05.06.1995 i.e. just after two days of the incident.
P.W.1 in cross-examination has stated that the fisherman informed the village of the beheaded dead body and cut head of his father. He, Ramchandra, Ashutosh and Promtho noticed the beheaded dead body and cut head of the victim. This is supported by Promotho (P.W.12) who though declared hostile had stated that the beheaded dead body and head of the victim was found separately near the river bed and he signed the seizure list at the time of seizure of the victim's beheaded dead body and head. He was also a signatory to the inquest.
2 separate Post Mortem Report was prepared one in respect of the cut head and the other in respect of the beheaded dead body.
35. The injuries evident from the post mortem report of the "Beheaded dead body of Suren Mondal, 50-52 years Male are :-
(1) Left shoulder incised wound 2''x1''x bone. (2) Abdomen-Incised transversely disposed 14'' x 6'' x intestinal coils extruded. The weapon has cut liver and there are multiple loops of small intestine + large intestine.
(3) Ante-mortem.
(4) Severe Incised Injuries; Evening of 03.06.1995 (Empty stomach). (5) Ante-mortem.
(6) Heavy sharp-cutting weapon.
"The opinion of the medical officer as to the cause of death was Ante-mortem severe homicidal injuries." The Medical Report nullifies the argument of the defence counsel that no offending weapon has been found and seized as well as no control earth, blood stained earth, loogni/wearing apparels of the deceased were sent for FSL examination, therefore, the accused cannot be connected with the murder.
The P.M. Report of the cut head has also mentioned the injuries suffered-
1. Incised injury over Right Post-auricular region/level cutting skull & exuding brain matter 3" x 1" x brain.
2. The Head was severed through C3/C4 vertebral level. In both the P.M. Report it has been stated that the cut head and beheaded dead body match or tallies.
36. Though case of motive was not argued by the defence counsel but it has been argued by learned counsel for the State relying upon Molu and Others case (supra) which cannot also be ruled out as admittedly there was an altercation between the victim Suren Mondal and accused Lalita Mondal at the Khailan of Subhas Mondal as a result whereof Lalita informed her brothers (accused persons) and they not only assaulted the victim by beating him and thereafter dragged the victim physically towards river Ganga.
37. It is also argued by the defence counsel that the accused persons have been acquitted from the charges under Sections 364/120B of the Indian Penal Code but we cannot ignore the records that the accused persons were subsequently also been charged under Section 302/201/34 of the Indian Penal Code by the learned Court below.
38. We also do not accept the defence argument on the point of delay in sending FIR as the delay in sending FIR did not cause any prejudice to the accused persons. Not only that no question was also put in cross-examination by the defence counsel at the trial stage and this point has been raised for the first time in the appeal stage which cannot be entertained by us at this stage.
39. We also find that testimony of P.W.1 and the P.W.3 (neighbour, declared hostile by the prosecution) corroborate each other. P.W.5, P.W.7 and P.W.8 all saw that Suren was assaulted by the accused persons and thereafter he was physically dragged towards the river Ganga. Thereafter what happened to the said Suren, the burden lies upon the accused persons to prove and not the prosecution as till the River Ganga he was in their company and in the company of none else. Therefore, the prosecution was able to prove its case till the victim was taken to the river Ganga by the accused persons. What happened to the victim after being taken to the River Ganga must be proved by the accused.
40. Therefore the theory of last seen together is applicable in the instant case in hand, and we give some credence to the submission of the counsel for the State that the Hon'ble Apex Court in State of W.B. vs. Mir Mohammad Omar And Others case (supra) prescribed that in the case of abduction it is the duty of the accused persons to prove what happened after abduction. Therefore, in the present case it is the accused persons' obligation to give explanation what happened to Suren after assault and dragged to River Ganga which they failed.
41. We find from the record that though the post-mortem report was accepted with objection but that was not challenged by the accused persons before any Court as law.
42. We also find some substance in the argument of the counsel for the State on the point of defective investigation that defect in investigation cannot be the ground for acquittal.
43. As discussed earlier that all the witnesses P.W.1, P.W.5. P.W.7. P.W.8 and P.W.9 are interested witnesses, therefore their testimony will have to be assessed with caution. But it is not the case of the prosecution that there was a family dispute between the victim and the accused persons or their relatives. It is the clear case of the prosecution that due to some altercation took place at Khailan of Subhas Mondal between Suren and Lalita. Lalita's brothers (accused persons) assaulted Suren and thrashed him on the ground and thereafter physically dragged him towards river Ganga and that has been proved by the testimony of the eye witnesses.
44. We also cannot shut our eyes that two days after the incident the beheaded body and the cut head of the victim were recovered from the river Ganga which was identified by no other than P.W.1, who happens to be the son of deceased Suren Mondal.
45. It is true the investigation was not handled happily by the prosecution but that does not give any right of acquittal to the accused persons from the sentence, when it is evident from the testimony of the eye witnesses that victim was last seen together with the accused persons at Khailan of Subhas Mondal near the football ground where he was beaten by the appellants.
46. It is also noticed from the post mortem report that the victim was in empty stomach which corroborated with the testimony of P.W.8 the daughter-in-law of the victim who after preparing food went to call victim to take his food towards Khailan of Subhas Mondal.
47. It is argued by the defence counsel that the seized articles like controlled earth, blood stained earth, loongi have not been sent for FSL examination but Court cannot shut its eyes on the point that the inquest report corroborated with the post mortem report.
48. The argument advanced by the defence counsel that the testimony of P.W.1 should not be given any credence as the incident was narrated to him by P.W.8 his sister-in-law and further P.w.1 gathered the information regarding beheaded body and cut head of his father from the fisherman as he deposed in his cross examination but the fisherman was not examined by the prosecution . But Court cannot give a go bye to the testimony of P.W.1 on the ground that P.W.1 being the son of the victim identified the beheaded body and cut head of his father. Promotho (P.W.12) though hostile has corroborated the statement of P.W.1.
49. It was also argued by the defence counsel that body was sent for post mortem on 06.06.1995. In post mortem report under column 4 and 5 it was marked that body was decomposed and age between 30-50 years but that means 20 years gap but normally margin of the age was only two years. But we cannot overlook that in the post mortem report victim's age was recorded as 52 years.
50. Considering the proposition of law, in our opinion the Trial Court has rightly found that the prosecution had established that the appellants had an object to kill Suren Mondal as there was an altercation between the said Suren Mondal and Lalita who is the sister of the appellants.
51. The evidence on record does not substantiate the claim of the defence counsels that there were no materials on record to prove that the appellants murdered the deceased. But, the evidence indicates that all the appellants were together when they arrived at the scene of offence. Therefore, the Trial Court has rightly declined to accept the submissions of the appellants.
We cannot ignore the testimony of the eye witnesses who have categorically deposed that they saw the appellants assaulting and thrashing Suren and dragging him towards the river Ganga.
52. The Trial Court has marshalled the evidence on record correctly. It has appreciated the evidence in accordance with law. We do not find any reason to interfere with the judgment.
53. Judgment of Trial Court is confirmed. Accordingly the appeal is dismissed. No order as to costs.
54. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all the formalities.
(Samapti Chatterjee, J.) I agree (Nadira Patherya)