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2004 DIGILAW 439 (CAL)

MAJID MONDAL v. STATE

2004-07-01

GORACHAND DE, SANKAR PRASAD MITRA

body2004
GORACHAND DE, J. ( 1 ) THIS appeal by Majid Mondal and Ajmira Bibi (husband and wife) is directed against the judgment and order of conviction dt. 18. 7. 98 and the sentence imposed on 20. 7. 1998 by the learned Sessions Judge, Nadia in session Trial Ko. IV of March, 1998 (Session Case No. 21 of December, 1997)arising out of G. R. Case No. 104/96 (Haringhata P. S. Case No. 36 of 1996 dt. 11. 3. 1996 ). By the said judgement, the learned Sessions Judge found both the appellants guilty under section 302/34 of the IPC and convicted them thereunder and sentenced each of them to suffer imprisonment for life and also to pay a fine of Rs. 2000/-, in default, to undergo further R. I. for a period of two years. ( 2 ) THE prosecution case in brief is that one Khayer Mondal (P. W. 1) at about 08. 15 hours on 11. 3. 96 handed over a written complaint to the Officer-in-Charge, haringhata Police Station, District-Nadia alleging that in the night of 10/11 day of March, 1996 at about 4. 30 a. m. hearing hue and cry from the house of majid Mondal, he along with villagers rushed to -the spot and found that his second brother Abul Basar Mondal (aged about 257 26 years) lying dead inside the room of Majid Mondal with bleeding injuries. It is also indicated in the written complaint that the victim Abul Basar Mondal occasionally used to visit the house of Majid Mondal and he had amorous relation with the wife of Majid mondal. It was also indicated that there was a monetary transaction between majid Mondal and the victim Abul Basar Mondal. It is further indicated that in that fateful night, the victim Abul Basar Mondal went to the house of Majid mondal for having illicit relation with Ajmira Bibi wife of Majid Mondal. The appellant Majid Mondal came to know about the affair and out of anger he and his wife assaulted Abul Basar Mondal with sharp cutting weapons on different parts of his body as a result of which the victim fell on the floor of the room and succumbed to his injuries. On the basis of this complaint, a formal FIR was filed in and the case was started. On the basis of this complaint, a formal FIR was filed in and the case was started. ( 3 ) IN course of investigation, the police visited the place of occurrence, seized weapons of offence, like one blood stained 'dao' and one blood stained 'spade' and other items. After inquest report, the dead body was sent for post-mortem examination. On completion of investigation chargesheet was filed against both the appellants under section 304 of the IPC. ( 4 ) THE case was committed to the Court of Sessions where a charge under section 302/34 of the IPC was framed against both the appellants on 14. 1. 98. As both the appellants pleaded not guilty to the charge, the prosecution examined as many as 9 witnesses, the details of which are given below :-p. W. 1 - Khayer Mondal (the complainant ). P. W. 2 - Asraf Ali Mondal (neighbour ). P. W. 3 - Mohidul Mondal (neighbour ). P W. 4 - Jumman Mondal (neighbour ). P. W. 5 - Sk. Monjul Islam (witness of seizure list and inquest ). P. W. 6 - Rejaul Haque (witness of seizure list and inquest ). P. W. 7 - A. S. I. Subal Chandra Das (drawer of formal FIR ). P. W. 8 - S. I. Murali Mohan Das (I. O. ). P. W. 9 :- Dr. P. K. Bhattacharya (Autopsy Surgeon ). ( 5 ) WHILE examined under section 313 of Cr. PC both the appellants pleaded their ignorance about the incident. However, the defence case, as can be ascertained from the trend of cross-examination of prosecution witnesses and also the answers given under section 313 of Cr. PC as well as the evidences adduced by the appellant Ajmira Bibi (D. W. 1) and Fulsarath Bibi (aunt-in-law of Ajmira Bibi) (D. W. 2), is that the appellant Majid Mondal was not in the house of D. W. 2 in that night of the alleged incident. ( 6 ) AFTER hearing the arguments of learned counsel of both sides and on perusal of the materials on record, the Trial Court came to the conclusion that the charge under section 302/34 of the IPC was proved beyond all reasonable doubt against both the appellants and accordingly it found both the appellants guilty and convicted them thereunder, and sentenced in the manner indicated hereinabove. ( 7 ) IN course of hearing Mr. ( 7 ) IN course of hearing Mr. Joymalya Bagchi, learned counsel appearing for the appellants after scanning the evidence and the circumstances contended that the Trial Court did not take into consideration the reason of arrival of the victim Abul Basar Mondal in the room of the appellant Majid Mondal in the dead of night. It is also pointed out that Trial Court also did not consider that most of the witnesses spoke about an illicit connection between the victim and the appellant Ajmira Bibi. The Trial Court also did not consider the amorous relation between the two and the anger of the appellant Majid Mondal on this issue. Mr. Bagchi further contended that the chargesheet was accordingly submitted under section 304 of the IPC keeping in view that the alleged killing of Abul Basar Mondal must be due to the sudden anger of the appellant Majid mondal who found the victim inside the room of his wife in that night. ( 8 ) MR. Bagchi also contended that in course of assault, the user of any domestic weapons like 'dao' or 'spade', etc. , which are generally used for agriculture and harvesting purpose, is sufficient to indicate that there was no pre-planned intention to kill the victim. It is also pointed outthat all the injuries on the back side of the victim excepting the injury No. 5 as can be found from the post-mortem report, are sufficient to indicate that the victim was attacked from his back when the victim was in a lying position on his chest. Mr. Bagchi tried to indicate that the actual assault might have been caused at the time of sexual act with Ajmira Bibi by the victim in the usual lying position. ( 9 ) SO, Mr. Bagchi after analysing the circumstances and the evidence on record contended that the charge under section 302 of the IPC was not proved against the accused Majid Mondal. It is also argued that the question of killing the victim by Ajmira Bibi is also to be ruled out inasmuch as the victim was attacked from behind in the position indicated hereinabove. It is also argued that the injury No. 5 indicated in the post-mortem report is sufficient to indicate that at the last resort the victim resisted the assailant. ( 10 ) SO, Mr. It is also argued that the injury No. 5 indicated in the post-mortem report is sufficient to indicate that at the last resort the victim resisted the assailant. ( 10 ) SO, Mr. Bagchi contended that the charge against Ajmira Bibi having not been proved, she is found not guilty and accordingly, an order of acquittal should be passed in her favour. ( 11 ) MR. Sasanka Ghosh, learned counsel appearing on behalf of the State along with the learned Public Prosecutor, however contended that the nature of the injuries are sufficient to indicate that those were inflicted with intention to cause death. It is also argued that the materials on record are sufficient to indicate that a plea of alibi as taken by the appellant No. 1, Majid Mondal having not been proved, reliance is to be placed on the evidence of the other witnesses on the basis of which it is to be concluded that both the appellants were present at the time of alleged assault on the victim. So, Mr. Ghosh contended that intentional cause of death by both the accused persons are sufficient to bring home the charge levelled against them and accordingly, the judgement of the Trial Court should be upheld by this Court. It is also pointed out that there was no provocation on the part of the victim to bring a case out of the ambit to culpable homicide amounting to murder. ( 12 ) SO, after hearing the learned counsel of both sides and on perusal of the materials on record, it is to be noted that the following facts have been established and proved in this case: (1) the appellant Majid Mondal took loan from the victim abul Basar Mondal and as such there was a monetary transaction between the two, (2) the victim had illicit relationship with the appellant No. 2, Ajmira Bibi, (3) the victim was assaulted to death inside the room of the appellants in the dead of night and the victim entered inside the room. of the appellants in the dead of night and all the assaults were inflicted on him on his back side by means of weapons of offence which are generally used for harvesting viz, Dao and Spade, (4) the victim was unmarried at the time of alleged offence. of the appellants in the dead of night and all the assaults were inflicted on him on his back side by means of weapons of offence which are generally used for harvesting viz, Dao and Spade, (4) the victim was unmarried at the time of alleged offence. ( 13 ) TAKING in view the abovementioned proven facts, the entire case is to be looked into. It is established that unmarried victim aged about 25/26 years taking benefit of his monetary transaction with the appellant No. 1, Majid mondal involved with his wife Ajmira Bibi sexually. It is also proved by the witnesses that this illicit relationship between the victim and Ajmira Bibi was known to others. It is also proved that in the night of 10th/11th day of March, 1996, the victim went inside the room of the appellants and an attempt was made by the appellant No. 1 to show that he was not present in the room and he was staying elsewhere, but D. W. 2 disproved this plea of alibi. But the facts remain that Ajmira Bibi and the victim were inside the room of the appellant no. 1, Majid Mondal. The nature of injuries inflicted on the victim are sufficient to indicate that he was lying on his chest which can only be possible in course of amorous relationship. The dead of night and the presence of Ajmira Bibi and the victim were the best opportunate moment for the purpose. So, the victim took upon himself the risk of coming to the house of the appellant in the dead of night namely for the purpose of satisfying his illegal lust. Circumstances are sufficient to indicate that the appellant Majid Mondal, practically found the victim in such a condition which gave a sudden provocation to him for which he was deprived of the power of self-control and accordingly started assaulting the victim. ( 14 ) TRUE it is that both the appellants tried to say that they were not present at the time of incident, but the other witnesses categorically stated that after the alleged incident they found both the appellants fleeing away. So, the presence of both the appellants on the spot has been established. But it is also established that the assault on the victim by Majid Mondal was undoubtedly due to sudden provocation viz. , illicit physical relationship between the victim and Ajmira bibi. So, the presence of both the appellants on the spot has been established. But it is also established that the assault on the victim by Majid Mondal was undoubtedly due to sudden provocation viz. , illicit physical relationship between the victim and Ajmira bibi. Accordingly, keeping in view the circumstances and the materials on record, the I. O. filed the chargesheet under section 304 of the IPC. But it is not clear as to what prompted the Trial Court to frame a charge under section 302 of the ipc. Be that as it may, after careful scrutiny of the materials on record, we are of the view that this case comes within the purview of section 304, Part-II of the IPC, specifically keeping in view the nature of weapons used in the offence and the injuries inflicted on the victim. The assailant Majid Mondal used those weapons with the knowledge that those were likely to cause death. So, it does not indicate that he had any intention to cause death. After accepting the arguments advanced by the appellants in this case, we take the view that the charge under section 304, Part-II of the IPC has been established in this case. ( 15 ) SINCE the charge was framed under section 302 of the IPC, there is no necessity of framing a separate charge for the lessor offence. The accused Majid mondal is accordingly found guilty under section 304, Part-II of the IPC. ( 16 ) AS regards the appellant No. 2, Ajmira Bibi, it is rightly pointed out by mr. Bagchi that she had no role to play in the alleged assault or death of the victim. The evidences on record are sufficient to indicate that the unmarried victim only to satisfy his lust went to the room of Ajmira Bibi in the dead of night. There is no indication that the victim was also assaulted by Ajmira Bibi. On the other hand, all the assault on the victim are sufficient to indicate that ajmira Bibi could not inflict any of the injuries as the victim was on her body at the time of assault. So, after careful consideration oi' the materials on record, we come to the conclusion that the charge against Ajmira Bibi has not been proved. Accordingly, there is no material on the basis of which she can be found guilty. So, after careful consideration oi' the materials on record, we come to the conclusion that the charge against Ajmira Bibi has not been proved. Accordingly, there is no material on the basis of which she can be found guilty. So, Ajmira Bibi is found not guilty to the charge and accordingly, she is to be acquitted. ( 17 ) IN view of the discussions made above, this appeal is allowed in part. Conviction and sentence imposed on Majid Mondal is altered from section 302 of the IPC to section 304, Part-II of the IPC. The appellant Majid Mondal is accordingly found guilty under section 304, Part-II of the IPC, convicted thereunder and sentenced to suffer R. I. for seven years. The period of detention undergone is to be set off against the substantive imprisonment under section 428 of Cr. PC. The imposition of fine is also set aside. ( 18 ) THE appellant Ajmira Bibi is found not guilty to the charge under section 302 of the IPC and she is acquitted. She is also discharged from her bail bond. ( 19 ) LET ordering portion of the judgment be sent to the Superintendent, dum Dum Correctional Home forthwith. ( 20 ) LET a copy of this judgment along with the L. C. R. be sent to the Court below as early as possible. ( 21 ) XEROXED certified copies of this judgment be given to the parties on usual undertaking. Appeal partly allowed.