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2002 DIGILAW 247 (CAL)

Madhu Mondal v. State of West Bengal

2002-04-12

Joytosh Banerjee, Nure Alam Chowdhury

body2002
JUDGMENT Joytosh Banerjee, J.: The present appeal is directed against order dt. 15.5.96 passed by Additional Sessions Judge, Hooghly in Sessions Trial No. 47/93, convicting the appellant/petitioner for an offence punishable under section 302 of the Indian Penal Code and sentencing him to R.I. for life. 2. Briefly stated, the prosecution case as depicted in the FIR lodged by the informant Satya Roy (PW. 1) is that on 4.5.91 about 2:30 pm, Bapi, the grandson of Champa Maji of village Purusatyambati PS Polba came to the house of the informant and asked him (PW.1) to come quickly as Madhu uncle had chopped of this mother. At once the informant went to the spot to see what had happened and found that Basanti, the daughter of Champa Maji was lying dead on the floor inside the room. He also found Madhu, her brother-in-law who was lying on his belly in unconscious state. The informant at once informed Narayan Chakroborty (PW. 7) the assistant headman of the village and also informed some other villagers who too came and saw the incident. 3. On the basis of the aforesaid information, the then OC Polba P.S, S.I.B. N Kundu (PW.12) started PS case No. 53 dated 4.5.91 and himself took up the investigation of the same. He visited the PO, prepared the sketch map. He also held inquest over the dead body of the victim Basanti Mondal. He sent the dead body to Chinsurah Sadar Hospital for P.M. examination. He also seized some articles under seizure list. He arrested appellant/accused Madhu from the house of Basanti and pursuant to his statement recovered the instrument with which the accused murdered the victim. He seized the instrument on a seizure list. He examined the witnesses. But before he could complete the investigation he was transferred. Later on the investigation was completed by S.I.B. K Banerjee (PW. 11) who submitted the charge-sheet. Subsequently, on consideration of the relevant papers the learned Trial Court raised charge under section 302 against the appellant/accused Madhu Mondal and the trial proceeded when the accused pleaded not guilty. 4. In course of the trial the prosecution examined in all 12 witnesses including PW.1, the informant, PW. 11 and 12 the I.Os of the case. PW. 2 Champa Maji was the mother of victim Basanti. 4. In course of the trial the prosecution examined in all 12 witnesses including PW.1, the informant, PW. 11 and 12 the I.Os of the case. PW. 2 Champa Maji was the mother of victim Basanti. From her evidence, we find that Dulal (not examined) was the husband of victim Basanti, Madhu the appellant accused was the brother of Dulal was a resident of village Herait. The witness further stated that for about 10 days prior to her death, Basanti was living in the house of the witness along with her husband Dulal. She very clearly indicated that there was only one room in her house and in that very room the witness herself, Basanti and her husband Dulal were staying at the relevant point of time. The witness further stated in her evidence that on the date of incident in the morning time appellant/accused Madhu came to her house and after offering food to him she along with her daughter Basanti went to have bath. Basanti returned to the house before the witness as she was hungry. When the witness returned she saw that Basanti had been murdered and blood was coming out from her house. Seeing this, she fell down unconscious. It is the further statement of the witness that she was regaining her sense at short intervals and during such spell she was interrogated by the 10 and she made the statement to him. In the cross-examination, she indicated that before the incident her son-in-law Dulal had gone towards river. But she was unable to say when he returned. She further disclosed that appellant/accused Madhu was lying unconscious by the side of the dead body of Basanti with injuries on his person. She clearly indicated that her son-in-law Dulal was not present in the house at the time of the incident complained of. She also indicated that Dulal used to take liquor by the side of the river. At the same time she stoutly denied a specific suggestion from the defence that in a drunken condition Dulal had murdered Basanti and appellant/accused Madhu went to save Basanti from the hands of Dulal and in that way sustained injuries on being assaulted by his brother Dulal. PW. 3 Sanjib Mondal and PW. 4 Ashoke Mondal are two brothers who were the minor sons of the victim Basanti. PW. 3 Sanjib Mondal and PW. 4 Ashoke Mondal are two brothers who were the minor sons of the victim Basanti. The first one was aged about 12 years and the second one was aged about 10 years when they were examined about 5 years after the incident complained of. In other words, those two witnesses were mere children when their mother was murdered. According to PW. 3 he was also known as Suraj but he was not known as Bapi. He stated in his evidence that on the date of incident he and his brother (Ashoke) PW. 4 was playing in the veranda when her mother entered inside the room. In that room their uncle Madhu was only present. 5. His evidence further indicated that after his mother had entered in that room Madhu murdered her and he went to give such information to his grandmother Champa (PW.2). Thereafter PW. 2 and his aunt Manobi (not examined) and others came to the P.O. He also disclosed that his father was not present in the house at the relevant point of time. He disclosed in his cross-examination that he along with his brother Ashoke were playing in the veranda which was on the back side of the house. There was only one door in the room where the incident complained of took place and at the time of incident none else was present there. The witness further disclosed that when he was interrogated by the police his uncle Madhu was lying unconscious by the side of the dead body of his mother in the aforesaid room. The witness further disclosed in such cross-examination that he did not actually witness the incident of murder of his mother by the accused. There was a specific suggestion given to the witness that such witness was tutored to say that the accused Madhu chased them (the witness and his brother) immediately after the incident. He also denied a specific suggestion from the defence that his father had actually murdered his mother and on being tutored he was telling that his uncle Madhu murdered his mother. 6. P.W.4 Ashoke Mondal is the other child witness and was the son of the victim. He also denied a specific suggestion from the defence that his father had actually murdered his mother and on being tutored he was telling that his uncle Madhu murdered his mother. 6. P.W.4 Ashoke Mondal is the other child witness and was the son of the victim. He fully corroborated the oral testimony of P.W.3 on the point that he along with his brother were present near the spot where their mother had been murdered and also about the circumstances under which the victim was murdered by disclosing that just prior to the incident of murder his mother Basanti had come back after having bath and went inside the room for changing the cloth when she was murdered by the accused Madhu. He further corroborated the oral testimony of PW. 3 on the point that their father Dulal was not present in the house when the murder of their mother took place. His witness clearly disclosed that they were playing under a mango tree just by the side of their house and in course of such playing he had gone in front side of the house and saw the incident of murder. He corroborated the oral testimony of PW. 3 by stating that their uncle Madhu was seen lying unconscious inside the room like PW. 3. The defence specifically gave a suggestion to the witness that the father of the witness had murdered the mother of the witness and he also assaulted accused Madhu. The specific suggestion has been denied by the witness. 7. PW. 5 Sunil Ghosh was a resident of village Purusatyambati and as a co-villager he knew the house of Kartik Maji the brother of the victim Basanti. On the date of incident he had been to the house of Kartik, hearing about the murder of Basanti and going there he found that Basanti was lying dead and another person who was not known to him was lying in injured condition. In the cross-examination the witness stated that there was no veranda on the back side of the room and the person who was seen lying injured condition, actually one of his testicles was severed from the body. PW. 6 Ashoke Ghosh a resident of village Purusatyambati knew the victim Basanti and he was a witness to the inquest held over the dead body of such victim. PW. PW. 6 Ashoke Ghosh a resident of village Purusatyambati knew the victim Basanti and he was a witness to the inquest held over the dead body of such victim. PW. 7 Narayan Chakroborty is a resident of village Panchati and one day in the year 1991 in noon time Staya Roy (PW. 1) informed him aoout the 'murder of Basanti who was known to the witness from before and he also requested the witness to go to the spot. Accordingly, the witness came to the P.O. along with PW. 1 and saw Basanti who had been murdered and she was lying in a pool of blood and another person was lying by her side in the same room. PW. 8 Sahadev Das is a co-villager of PW.2 Champa Maji and had been to her house getting information of the murder of Basanti. He also stated in his evidence that Basanti's brother-in-law that is to say, the brother of her husband was also seen lying by her side. 8. PW. 9 Dr. P.G. Bhattacharjee who at the relevant point of time was MO attached to Sadar Hospital Hooghly at Chinsurah, held the P.M examination over the dead body of victim Basanti Mondal. He found the following injuries on the person of the victim:- 1. Cut laceration on the right side of the neck measuring about. 4” x 1” x 3” with cut underline structure obiquently situated. 2. Cut laceration on the left side of the back on the left scapula region measuring about 3” x ½” x 2” with cut of the under line bone. 9. In the opinion of the doctor death was due to the effect of the injuries noted above which were anti-mortem and homicidal in nature. 10. PW. 10 S.I. D. R. Biswas and PW. 11 S.I.B.K. Banerjee as S. I. of police attached to Polba P.S. took up the investigation at different points of time and S.I. Banerjee, in fact, submitted the charge-sheet after collecting the report of FSL. 11. PW. 12 S. I. B.N. Kundu received a written complaint from Satya Roy (PW. 1) on 4.5.91 filled up the formal F.I.R. and started Polba P.S case No. 53 dated 4.5.91. At the relevant point of time he was the OC of that P.S. and he himself took up the investigation of the case. 11. PW. 12 S. I. B.N. Kundu received a written complaint from Satya Roy (PW. 1) on 4.5.91 filled up the formal F.I.R. and started Polba P.S case No. 53 dated 4.5.91. At the relevant point of time he was the OC of that P.S. and he himself took up the investigation of the case. He visited the P.O, held inquest over the dead body of the victim Basanti, sent the dead body to Chinsurah Sadar Hospital for P.M. examination, seized some alamat, preparing seizure list and also arrested appellant/accused from the house of Basanti. It is the further statement of the witness that in pursuant to the statement made by the accused he recovered the weapon of assault and seized the same on a seizure list. He sent the alamat to FSL for chemical examination. Before he could complete the investigation he was transferred. In the cross-examination the specific suggestion was made to the witness that going to the spot he met Dulal, the husband of the victim Basanti and came to know that he was the person who was responsible for causing the murder. It was further suggested that he detained Dulal for 3, 4 days and thereafter Dulal was released for reasons best known to him without forwarding him in connection with the case. It was also suggested to the La that actually Dulal committed the murder of his wife Basanti and when accused Madhu went to see Basanti he was also assaulted by Dulal by sharp cutting weapon causing injury. All these suggestions of course, were denied by the witness. 12. The learned Additional Sessions Judge held that the charge of murder levelled against the appellant/accused was proved beyond reasonable doubt by the evidence of witnesses and also by circumstantial evidence. 13. In this case while considering the question whether the order of conviction on the appellant/accused should be upheld or not, we find that the court is required to depend on some relevant circumstances along with the evidence of two child witnesses, for such purpose. It was also found that the two child witnesses who were examined in this case namely, PW. 3 Sanjib Mondal and PW. 4 Ashoke Mondal were about 7 years and 5 years of age at the relevant point of time when the incident complained of took place. They were examined about 5 years after such incident. It was also found that the two child witnesses who were examined in this case namely, PW. 3 Sanjib Mondal and PW. 4 Ashoke Mondal were about 7 years and 5 years of age at the relevant point of time when the incident complained of took place. They were examined about 5 years after such incident. We cannot reject the evidence of these two witnesses only on that ground. In this respect we should point out that under section 118 of the Evidence Act all the persons should be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. Explanation to that section clearly indicates that even a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. Therefore the language of the section clearly indicates that competency of witnesses is the rule and their in-competency is the exception. In this way we find that under section 118 of the Evidence Act a child is competent to testify, if it can understand the question put to it and give rational answers thereto. On going through the oral testimonies of PWs. 3 and 4, we do not find anything which may lead us to form an opinion that both the witnesses who were aged about 12 and 10 years at the time of their examination did not understand the questions put to them. We find from evidence of the witnesses that they were playing at a nearby place when they found that their uncle was taking rest inside the room (where the incident complained of took place) after taking midday meal. At that time their mother Basanti went inside that room after taking bath, for the purpose of changing the wearing apparel. In this way, the evidence of these witnesses clearly indicated that their uncle Madhu was all alone in the room when their mother Basanti went inside the same for the aforesaid purpose. PW. At that time their mother Basanti went inside that room after taking bath, for the purpose of changing the wearing apparel. In this way, the evidence of these witnesses clearly indicated that their uncle Madhu was all alone in the room when their mother Basanti went inside the same for the aforesaid purpose. PW. 3 Sanjib is his examination-in-chief stated that after his mother had entered inside the room appellant/accused Madhu murdered her but in the cross-examination he clearly indicated that he did not actually witness the incident of murder but PW. 4 Ashoke Mondal made a similar statement in his examination-in-chief and in the cross-examination he stated that he saw appellant/accused Madhu to commit the murder of his mother. We should mention here that through the cross-examination no suggestion was given and no circumstance was taken out indicating that those two witnesses were not present at the spot when the incident complained of took place. On the other hand, a specific suggestion was given to both the witnesses that their father had actually murdered their mother and on being tutored they were falsely implicating uncle Madhu with such murder. This specific suggestion has been denied by the witnesses. But from such suggestion we can come to this conclusion that the presence of both the child witnesses near the spot is not at all disputed and, therefore, in our considered opinion we do not find any force behind the argument advanced by the learned Defence Lawyer showing that while both the witnesses stated in their evidence that they were at the time of incident playing in the back side veranda of the house but the evidence of the I.O. clearly disclosed that there was no back side veranda and, therefore, the presence of the witnesses near the spot where the murder took place should not be accepted. In our considered opinion if the witnesses were not present near the spot as claimed by them, they could not be a competent witness either to accept or deny a suggestion given from the side of the defence as noted above regarding the involvement of their father in the offence complained of. We should not forget that in the instant case both the child witnesses deposed before the court about five years after such incident. We should not forget that in the instant case both the child witnesses deposed before the court about five years after such incident. Therefore, it is not at all, improbable for a witness like them to forget about some unnecessary details of the alleged incident. The fact remains that the child witnesses described the background of the incident complained of, very clearly in their evidence and there is no just reason to reject their evidence on that point. True it is that one of them clearly disclosed in his evidence that he did not personally see his mother being murdered by his uncle appellant/accused while the other, the younger one claimed in the cross-examination that he himself saw such incident. In our considered opinion the evidence to this effect should not be thrown out merely because the witness was a mere child of about five years when such incident took place. It is more so when it was never suggested to such witness that he was not present near the spot when the incident took place and when defence failed to bring out any circumstance which can make such claim unacceptable. Of course, through such evidence we do not get any clear picture how the victim was murdered by the accused and, therefore, it is better to see whether there are other clinching circumstances to establish the charge levelled against the accused. Before we proceed further in the matter, it should be noted, that in the instant case there is no dispute that the victim Basanti was murdered on the day, time and place as alleged by the prosecution. The only question here is who actually murdered the victim? According to the prosecution case, victim Basanti was murdered by her brother-in-law (brother of the husband), Madhu, the appellant/accused. Defence on the other hand through specific suggestions to different prosecution witnesses wanted to establish that actually the husband of the victim Dulal murdered her and the appellant accused sustained injury on his person while he tried to resist his elder brother from launching assault on his wife which resulted in her death. 14. Defence on the other hand through specific suggestions to different prosecution witnesses wanted to establish that actually the husband of the victim Dulal murdered her and the appellant accused sustained injury on his person while he tried to resist his elder brother from launching assault on his wife which resulted in her death. 14. It is well settled that the circumstances from which an inference of guilt is set up must be cogently and firmly established and such circumstances, taken cumulatively, should form a chain so complete, which point towards the accused and none else as the person responsible for commission of the offence and nature of such evidence should not only consistent with the guilt of the accused but should also be inconsistent with his innocence. If we consider the whole circumstances which emerged from the total evidence on record, then it would be seen that immediately prior to the incident the appellant/accused was all alone in the room where the murder took place. It further transpires that when the appellant was resting in that room, the victim came back after taking bath and she entered that room for the purpose of changing her wet wearing apparel. It further transpires that soon thereafter, the victim was seen murdered and she had bleeding injuries on her person. It further transpires that the accused was also seen lying by the side of the deadbody of the victim with injury on his person and the specific injury which the appellant/accused sustained was severance of one of the testicles. The appellant/accused at that time seen lying unconscious and he was naked. If we take all these circumstances together then this will lead us to the conclusion that seeing the sister-in-law entering inside the room for changing her wet wearing apparel after bath the appellant/accused wanted to gratify his lust which was resisted by the victim and in his way the accused sustained injury as noted and the accused committed the murder. Defence wanted to establish as we have already pointed out that the murder was committed by the husband of the victim but none of the witnesses examined from the side of the prosecution stated that the husband of the victim was present at the spot or at a nearby place, at the time of incident. Defence wanted to establish as we have already pointed out that the murder was committed by the husband of the victim but none of the witnesses examined from the side of the prosecution stated that the husband of the victim was present at the spot or at a nearby place, at the time of incident. In fact, there is nothing to show that the husband of the victim had any part to play in the matter. No doubt, one of the witnesses namely, P.W.1 Satya Roy in his cross-examination stated that husband of the victim Dulal was arrested by the police and he was detained in the police custody for 3/4 days. But, we cannot place any reliance on such a statement of P.W.1 firstly as the witness was not competent to say whether Dulal, the husband of the victim had been arrested in connection with the present case or in connection with any other case or not and whether he was in jail custody or in police custody. Secondly, the I.O. of the case has stoutly denied such a suggestion and the defence has failed to file even a scrap of paper to show that Dulal was, in fact, arrested in connection with this case. On one point of time learned defence lawyer wanted to argue that Dulal was taken into custody by the police and he was never forwarded before the court. But the police released Dulal for the reasons best known to them. We are not inclined to accept such circumstance which is totally against the law, and where the defence has not produced anything to make such a situation probable. Therefore, from the total circumstances we find that when the appellant was sitting alone in the room, the victim after taking her bath entered inside the room for the purpose of changing her wearing apparel and soon she was found lying dead by the side of the accused who was lying in naked condition and he was also unconscious with a serious injury on his person. In our considered opinion all these relevant circumstances which have been cogently and firmly established not only formed a complete chain pointing towards the appellant/accused and none else as the person who was responsible for commission of the offence but same were also inconsistent with the innocence of such appellant/accused. 15. In our considered opinion all these relevant circumstances which have been cogently and firmly established not only formed a complete chain pointing towards the appellant/accused and none else as the person who was responsible for commission of the offence but same were also inconsistent with the innocence of such appellant/accused. 15. Before we part with the matter we should mention some of the important arguments advanced from the side of the defence. It has been argued by the learned defence lawyer that there was a prior information about the murder before the F.I.R. was lodged. In this connection, our attention has been drawn to the evidence of P.W.1 wherein he has stated that after he along with other returned to the P.O. an information was given to Polba P.S. over telephone. But such a statement does not get support from the evidence of the I.O., S.I. B.N. Kundu (P.W.12) who started the case on receipt of the written complaint from P.W.1. His cross-examination clearly indicated that the police did not receive any telephonic message relating to the, incident. No doubt, the witness further stated that he did not consult the G.D. book to speak about it. But on attempt has been made from the side of the defence to establish any information prior to F.I.R. The learned defence lawyer has also commented, regarding the manner in which P.W.1 deposed about lodging of the F.I.R. In this connection, our attention has been drawn to the specific statement of P.W. 1 wherein he stated that he affixed a signature on the F.I.R., on being asked by the police. It is submitted by the learned defence lawyer that signature of the informant appearing in the F.I.R. was an outcome of the instruction of the police. The learned Additional Public Prosecutor, on the other hand, submitted that the aforesaid circumstance should not lead us to a conclusion that the F.I.R. was lodged at the instance of the police and it was not a voluntary act on the part of the informant especially when the incident complained of has been established through unchallenged evidence tendered from the side of the prosecution. In our considered opinion, we should look into totality of the matter and the aforesaid statement made by the informant regarding his signature on the F.I.R. cannot make the whole prosecution case a matter of, suspicion, especially when the evidence on record clearly established the murder of the victim at the P.O. It is further submitted by the learned defence lawyer that P.W.3 in his evidence denied that his nick name was Bapi. He stated that he was also known as Suraj. It is submitted by the learned defence lawyer that as per F.I.R., Bapi the son of victim reported murder of her mother by the accused. In our considered opinion that cannot create any doubt, about the basis of the F.I.R. The son of the victim might be called Bapi or not, evidence of informant and grandmother (mother of the victim) indicated that P.W.3 reported about the unfortunate incident in which his mother was killed. Lastly, it is submitted by the learned defence lawyer that the doctor in his evidence stated that in his opinion death was due to the effect of injuries stated in his evidence but did not state that one of such injuries seen in the person of the victim was sufficient to caused the death. In that background, the accused could not be convicted under section 302 I.P.C. for committing murder. In this respect, reliance has been place on the decision made in Chilamakur Nagireddy & Ors. vs. State of Andhra Pradesh, A.I.R. 1977 S.C. 1998, on carefully going through the reported decision of the Apex Court, we find that in that case there were several accused. According to doctor's evidence injuries caused by accused 'A' with a spear and by 'B' with a bana-stick were such that each of them was sufficient in normal course of cause death. But no specific and definite opinion of doctor was furnished that the injury caused by accused 'c' on the parson of deceased by itself was fatal and sufficient in normal course to cause his death and in that case the Apex Court held that conviction of 'c' under section 302 could not be sustained. But in the instant case appellant/accused alone was prosecuted for the murder of the victim and the doctor opined that the death was the result to cumulative effect of the injuries sustained by the victim on her person. But in the instant case appellant/accused alone was prosecuted for the murder of the victim and the doctor opined that the death was the result to cumulative effect of the injuries sustained by the victim on her person. That being so, it cannot be said that the reported decision will be helpful in advancing any argument against the conviction under section 302 I.P.C. recorded here. 16. In the result, we dismiss the appeal of the accused and uphold his conviction and sentence under section 302 of the Indian Penal Code. Nure Alam Chowdhury, J.: I agree. Appeal dismissed.