Calcutta High Court (Appellete Side)
Mathur @ Mathura Mondal vs The State Of West Bengal on 3 July, 2019
Author: Jay Sengupta
Bench: Md. Mumtaz Khan, Jay Sengupta
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
And
The Hon'ble Justice Jay Sengupta
C.R.A. 689 of 2009
Mathur @ Mathura Mondal
Versus
The State of West Bengal
For the appellant : Mr. Soubhik Mitter
Mr. A. Sinha
Ms. A. De
....Advocates
For the State : Mr. Neguive Ahmed
Mr. A. Hossain
Mr. N. P. Agarwala
.....Advocates
Heard lastly on : 18.06.2019
Judgment on : 03.07.2019
Jay Sengupta, J.
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1. This appeal is directed against the judgment and order of conviction dated 20.03.2008 and sentence dated 24.03.2008 passed by the Learned Additional Sessions Judge, 1st Fast Track Court, Arambagh, Hooghly in ST Case No. 23(5) of 2005: SC Case No. 25/2005, thereby convicting the appellant under Section 302 of the Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 10,000/- in default to undergo rigorous imprisonment for one year, for murdering his wife and eldest daughter.
2. On 04.12.2004 at about 0.45 hours, PW 1, a neighbour of the appellant, lodged a First Information Report against the appellant under Section 302 of the Penal Code. He alleged that on 04.12.2004 at about 1.00 a.m. on hearing a cry, 'save me, save me', of the younger daughter of the appellant residing beside their club room, PWs 1 and 7 went to the appellant's house and saw that the appellant had killed his wife and elder daughter by smashing their heads and faces with bricks. The appellant rushed out of his house and made an extra-judicial confession that he had murdered his wife and elder daughter. In the meantime, the police personnel arrived at the spot and caught the appellant.
3. Investigation commenced. On 04.12.2004 at about 1.15 hours, PW 7 conducted an inquest over the two dead bodies in the presence of witnesses. 3 On the deadbody of the deceased Jayanti Mondal, the wife of the appellant, bleeding injuries were found in two places beside the eye-brow at the corner of the left eye. Brain matters had come out from the right side of the head and something like a hole was seen. On the deadbody of the victim/deceased Aparjit alias Piya Mondal, the elder daughter of the appellant, a one inch bleeding wound was found on the left eye-brow and a bleeding injury at the corner of the right eye. The injuries were inflicted with the help of full sized bricks, which were found smeared with blood. PW 9 conducted the post-mortem examination on the two dead bodies on 04.12.2004. He opined that the deaths were due to the injuries as mentioned in the reports, which were ante-mortem and homicidal in nature. A charge-sheet was submitted against the appellant after completion of investigation. On 20.05.2005 a charge was framed against the appellant under Section 302 of the Penal Code.
4. During trial the prosecution examined as many as 17 witnesses to establish its case. The defence case was primarily a denial of the prosecution case.
5. From a careful perusal of the evidence on record, it appears that PW 1 was the de facto complainant of the case. He was a post-occurrence witness, a witness to the seizure as well as the inquest. But, he turned hostile when confronted with a signature on the carbon copies of the inquest reports and 4 did not depose anything about the extra-judicial confession purportedly made by the appellant. PW 2 was the brother of the appellant. He was a seizure list witness as well as a witness to the inquest. PW 6 informed him that the appellant had hit two persons. Although he was a post-occurrence witness, the police did not examine him. In his cross-examination, PW 2 deposed that it was PW 6 who had informed the police about the incident over telephone. He claimed to have signed all the documents at the police station. PW 3 was a local man and a post-occurrence witness. He saw PW 10 calling them from a window and accusing the appellant of murdering the victims. The varandah was covered with a grill. PW 3 deposed about the appellant making an extra-judicial confession. The appellant threatened others. He again went to the place when police arrived. The appellant used to be an ill-tempered man. Sometimes there were quarrels between the husband and wife. PW 4 was a local man who only gave out a hearsay account. PW 5 was a local man and a post-occurrence witness. Hearing a young girl's voice, she and others went to the appellant's house. The appellant was moving inside the grilled house. The appellant threatened that others would face the same consequence if they came. She was examined after about a month. She spoke about the existence of a family dispute. PW 6 was a local post-occurrence witness. Hearing a girl's cries, he too, along with others, went to the appellant's house. The appellant also threatened PW 10, his younger daughter and was about to hit her. He also threatened them with murder if they tried to enter. PW 6 saw the two dead bodies lying on the floor of the room. He informs the appellant's mother. Police came. The appellant tried to flee, but was apprehended by the locals. The appellant was 5 arrested. He made an extra-judicial confession admitting his guilt. In his cross-examination, PW 6 stated that others also saw the dead bodies from outside the house. The police first arrested the appellant from the club and thereafter opened the gate of his house. He denied that the case was instituted against the appellant because he was a supporter of the Congress party. PW 7 was a local man who was shown as a seizure list witness. He turned hostile. Although he admitted his signature on the seizure list, he denied that the police seized anything in his presence. PW 8 was a neighbour and a post-occurrence witness. He saw the appellant with his younger daughter, having a brick in his hand. The appellant was giving out threats to kill. The gate was locked. The appellant came out and was to go away with her daughter. But, the police came. PW 9 was the autopsy surgeon for both the victims. He stated that the injuries were ante-mortem and homicidal in nature, might have been caused by a brick. In his cross- examination, PW 9 admitted that he did not prepare necessary reports. He found rigor mortis present in the dead bodies. The time of death could not be ascertained. He did not find any brick articles on the wounds of the victims. There was no reply in his report about whether an attempt to rape was there. PW 10 was the younger minor daughter of the appellant and the victim Jayanti. She was the only eye-witness available. She deposed that the appellant had murdered her mother. She heard altercations between the appellant and her mother. The appellant first hit his wife with a brick taking it out from the leg of a cot. When PW 10's elder sister tried to intervene, then the appellant hit her too with another brick. She shouted when the appellant was hitting. The appellant took her to her mother's maternal 6 home. Her statement was recorded under Section 164 of the Code. In the cross, she admitted that she had discussed about the killings with the inmates of her mother's maternal home. PW 11 was the Learned Judicial Magistrate who recorded the statement of PW 10 under Section 164 of the Code. PW 12 was the constable who carried the dead bodies. He was also a seizure list witness. PW 13 was the photographer who took photos of the victims at the hospital morgue. PW 14 was the photographer at the house/place of occurrence. A wooden cot was found without blood stains. No bedding was found there. PW 15 was the Police Officer who received the complaint at the police station. PW 16, a Sub Inspector of Police, was a witness to a seizure. PW 17 was the Investigating Officer of the case. He could not find any motive for the murders.
6. Mr. Soubhik Mitter, the Learned Counsel appearing on behalf of the appellant submitted as follows. The alleged incidents took place evidently at the spar of the moment and without any premeditation. Therefore, in spite of Section 302 of the Penal Code, at best Section 304 of the Penal Code could have been attracted in the present case. On this, reliance was placed on Devendra Nath Srivastava vs. State of Uttar Pradesh, (2017) 5 SCC 769, K. Ravi Kumar vs. State of Karnataka (2015) 2 SCC 638 and State of Madhya Pradesh vs. Abdul Latif, (2018) 2 CCrLR (SC) 233. The appellant has already undergone custody for nearly 12 years. In the alternative, the Learned Counsel prayed for a reference to the State for considering remission of sentence.
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7. Mr. Neguive Ahmed, the Learned Counsel appearing on behalf of the State submitted as follows. The injuries on the victims were clear from the post-mortem report and the doctor's evidence. The faces and the heads were battered. Vital portions of the body were attacked. The bricks used were recovered. The appellant did not use his hand to strike the victims, but gave multiple blows with bricks. If it were merely out of sudden rage, the appellant would have stopped at attacking the first victim. But, he went on to repeat the act on his daughter with whom he did not have any dispute. Even after the incident, the appellant restrained others from coming in and threatened them. Even the younger daughter was threatened. Therefore, the appellant clearly had knowledge about the consequences of his actions. Reliance was placed on the decision of the Hon'ble Apex Court reported in Virsa Singh, vs. State of Punjab, AIR 1958 SC 465. As regards the decision relied upon by the Learned Counsel for the appellant, the same were distinguished on facts, inter alia, as the present case involved a double murder, committed one after another.
8. We heard the submissions of the Learned Advocates appearing on behalf of the appellant and the State and perused the evidence and other materials on record so as to test the legality and propriety of the impugned judgment and order of conviction and sentence.
PW 10 - an eye-witness to the crime:
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9. PW 10, the minor daughter of the appellant and the victim lady, was the star witness of the case. She deposed that on the fateful night, she first heard altercations between the appellant and her mother. Then she saw the appellant first hit her mother with a brick after taking it out from the leg of a cot. When PW 10's elder sister tried to intervene, the appellant hit her too with another brick. She shouted when the appellant was assaulting the victims. PW 10's evidence was fully corroborated by the medical evidence adduced by PW 9, the autopsy surgeon. Immediately after the incident several witnesses had seen the appellant along with PW 10 inside their house, within the gated grill. The appellant was found with a brick threatening others as well as PW 10. In fact, PW 6 saw that the appellant was about to hit PW 10 as well. Deposing against one's own father is no mean thing. Her version cannot be viewed with suspicion merely because at the time of examination, she was staying at her maternal grand-mother's place. She had also given a statement under Section 164 of the Code that was recorded by PW 11, a Learned Magistrate. Her evidence was convincing and could not be shaken in the cross-examination.
Post-occurrence accounts:
10. The witnesses namely 2, 3, 5, 6 and 8 were the post-occurrence witnesses. Out of them PWs 3, 5 and 6 heard the cries of a girl and came near the spot. PWs 3, 5, 6 and 8 as immediate post-occurrence witnesses 9 saw the appellant threatening others from inside the grilled gate of the house. The appellant was moving around threatening everybody including PW 10. He had a brick with him. As per PW 6, he was about the assault PW 10 as well.
Extra-judicial confession:
11. Although one need not attach much importance to the extra-judicial confession made by the appellant in the instant case, especially in view of the cogent and convincing eye-witness account presented by PW 10, nevertheless, PW 3 did depose about the appellant making an extra-judicial confession about his guilt immediately after the occurrence. PWs 5 and 6 too alluded to a similar tenor in the threats meted out by the appellant. Seizure of offending bricks:
12. The seizure of the bricks from the appellant immediately after the occurrence further points towards his guilt. Although PW 7, a seizure list witness turned hostile and stated that nothing was seized in his presence, he admitted his signature on the seizure list. But, PW 1 clearly proved the seizure.
Medical evidence:
13. PW 9, the post-mortem doctor, inter alia, stated as under:- 10
"On that day I held the post-mortem of Aparajita alias Piou Mondal. The dead body was identified by C. 1169 Sarupa Nanda Ghosh to me. The victim was 11 years old on that day. I found lacerated injury on whole of scalp, multiple fracture on skull bone. Lacerated injury of bone, cerebral haemorrhage, extradural haemorrhage, subdural haemorrahage, sub- arachnotic. This is the post-mortem report of the dead body of Aparajita Mondal which is duly prepared and signed by me. (Mark the post-mortem report of the dead body of Aparajita Mondal as Ext. 4). In my opinion the death was due to injuries mentioned in my report and it is ante-mortem and homicidal in nature. If one is assaulted by a heavy brick one might sustain such type of injury and it may even cause his/her death. On that day I also held the post-mortem of Jayanti Mondal, 30 years identified by C/1169 Sarupa Nanda Ghosh. On examination I found lacerated injury of scalp, multiple fracture of skull, lacerated injury of bone, cerebral haemorrhage, extradural haemorrhage, subdural haemorrhage, subarachnotic haemorrhage. The post-mortem report of Jayanti Mondal is duly prepared and signed by me. (Mark the post-mortem report of Jayanti Mondal as Ext.
5). In my opinion death was due to injuries mentioned in my report. It s ante-mortem and homicidal in nature. If one is hit by brick one might sustain such type of injuries and even instantly cause death."
Therefore, the medical evidence as presented by PW 9 fully corroborated the ocular evidence as adduced by PW 10. Whether murder or culpable homicide not amounting to murder: 11
14. The main submission on behalf of the appellant was that the conviction under Section 302 could be scaled down to one under Section 304, Part I of the Penal Code. Afterall, it has come in evidence that prior to the incident, there was a quarrel between the husband and the wife. But, a murder need not always be a premeditated one. It is settled law that intention to commit murder can develop instantaneously. Therefore, it is necessary to analyse whether there was anything on record to show that the offence could have been a culpable homicide not amounting to murder. Although the preceding quarrel in a way acted as a mitigating factor, there were too many aggravating circumstances to deal with. First, the appellant did not assault the victims with hand, but choose to hit them with bricks. Even those bricks were not easily available. One after the other those were taken out from the leg of a cot in order that those may be used to assault the victims. A sudden rage would have ended by such time. But the appellant spent enough time and gave sufficient effort to take out those bricks from the leg of the cot and thereafter assaulted the victims on vital parts of their bodies. One would have given a second thought, if at all, the appellant had struck the first victim with a brick and stopped at that. But, he did not stop there. The appellant was having no quarrel with the second victim, her daughter. Simply because she intervened, the appellant choose to hit her on a vital part of her body with another brick. In such circumstances, one cannot give a benefit of doubt to the appellant that he might not have had the intention to murder his wife and child in the present case. The Learned Counsel appearing on behalf of the State rightly 12 distinguished the decisions relied on by the Learned Counsel for the appellant on facts. The case at hand is quite different. Here two murders were committed, one after the other and the sequence of events do not permit giving any benefit of doubt to the appellant even on the question of scaling it down to Section 304, Part I of the Penal Code.
15. In view of the convincing eye-witness account, the supportive medical evidence and the corroborative post-occurrence accounts, we hold that the prosecution was able to prove its case beyond all reasonable doubts.
16. In view of the above, we dismiss the appeal and affirm the judgment and order of conviction and sentence.
17. Whether in the facts and circumstances of the case, the State would consider any remission in favour of appellant is a different issue. We refrain from making any observation in this regard.
18. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action.
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19. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J) I agree (Md. Mumtaz Khan, J)