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2007 DIGILAW 571 (CAL)

Tunu Mondal v. STATE OF WEST BENGAL

2007-07-27

G.C.GUPTA, KISHORE KUMAR PRASAD

body2007
Judgment :- (1.) THE accused Tunu Mondal, son of Lakshi mondal was charged under section 302 of the Indian Penal Code for intentionally committing murder of his wife Shrirnati Sima Devi by inflicting injury with a spade and a crowbar on 28th July, 1992 at about 23.00 hours. The learned Trial judge found the charge to have been duly proved beyond reasonable doubt. He sentenced, the accused to undergo life imprisonment as also to pay a fine of Rs. 2,000/- and in default to suffer further rigorous imprisonment of one month, by his judgment and order dated 15th December, 1999. The convict has now come up in appeal. (2.) THE accused, the records reveal, was brought under arrest on 30thjuly, 1992. He was granted bail by an order dated 4th November, 1992. Actual release order was issued on 9th November, 1992. Bail, granted earlier, was cancelled by an order dated 12th January, 1998 at the prayer of the sureties and the accused was taken into custody. The case was thereafter tried. The accused was convicted. He since then, is in jail. (3.) THE case of the prosecution briefly stated is that on 28th July, 1992 at about 11 p. m. a quarrel cropped up between the husband and the wife. Their son Upendra, aged about 11 years at that point of time was sleeping in the room. Hearing the hue and cry he woke up and saw his father Tunu strike his mother with a spade. Sima fell down. His son Upendra snatched the spade from his fathers hand. Tunu took up a sharp crowbar and struck repeatedly on the back of his wife. Owing to the alarm raised by the son the villagers assembled; broke open the door of the room whereupon the accused fled. He was chased and caught near the colliery. When the victim was attended to she was found dead. The First Information Report was lodged at 6.05 a.m. on 29th July, 1992. (4.) DURING the inquest a blood stained cut mark on the upper lip of the deceased and two bleeding injuries on the right side of her neck and a deep bleeding injury on her right shoulder were found. (5.) UPENDRA, the son of the couple made a statement under section 164 Cr. PC on 2nd December, 1998 which has been marked exhibit 5. (5.) UPENDRA, the son of the couple made a statement under section 164 Cr. PC on 2nd December, 1998 which has been marked exhibit 5. In his statement he has stated that he was sleeping with his mother on a cot. After he had fallen asleep he was awaken by the cry of his mother. He saw that his father kicked his mother with his leg. The mother was crying. The father gave a blow on the neck of the mother by the spade. Blood oozed out. He snatched away the spade from his father. His father then took up a crowbar and hit his mother on her back twice. According to him his mother had cried out after she was hit by the spade but she possibly had died before she was hit by the crowbar because she did not cry thereafter. Bhola Bauri broke open the gate. Upendra got out of the room. His father chased villagers with the crowbar in his hand. The villagers fled away. The father also fled away and climbed upon a tree near No. 3 colliery. At that point of time the hands of his father were blood smeared. He added that his father drank her blood and cried that he had killed his wife and had also drunk her blood. Chopra Singh the Habildar of colliery No. 3 chopped the branch of the tree where his father was seated. His father fell down. Parameshwar Mondal tied his father with a rope. In the morning constables came and arrested him. (6.) PW 2 Upendra in his evidence has supported his statement made under section 164. He did not however depose that his father had drunk the blood of his mother. In his evidence he deposed that he used to visit his father in the jail. One of the significant facts which he has deposed is that he never saw any quarrel in between his mother and the father on any earlier occasion. (7.) PARAMESHWAR Mondal the de facto complainant is the maternal uncle of upendra. The deceased Sima Devi was the cousin sister of Parameshwar mondal. According to him after hearing the hue and cry many persons assembled near the house of Tunu Mondal. Tunu chased the villagers. Tumi was caught and was tied with a tree. Next morning a complaint was lodged with the police which was scribed by PW. The deceased Sima Devi was the cousin sister of Parameshwar mondal. According to him after hearing the hue and cry many persons assembled near the house of Tunu Mondal. Tunu chased the villagers. Tumi was caught and was tied with a tree. Next morning a complaint was lodged with the police which was scribed by PW. 6 Kalosona Kora. The FIR is marked as exhibit 1. In the cross-examination it was suggested that Parameshwar Mondal committed the incident with the help of others in order to take possession of the land which was forcibly occupied by Tunu. PW. 3 Bhola Bauri deposed that at the time of the incident he was in his house. On hearing the hue and cry raised by the son of Tunu he went to the place of occurrence. He found the body of the victim lying on the floor and the accused was standing near her with a crowbar in his hand and Upendra was crying. He has admitted that he had broken open the door. He also deposed that Tunu chased the villagers with the crowbar in his hand. The crowbar and the spade are material Exhibits 1 and 2 respectively. No special mark or level was however put on the crowbar and the spade. The trend of cross-examination is that Parameshwar mondal is the kingpin and he is at the root of everything and he was the perpetrator of the crime. PW. 4 Munsi Rai in his deposition has stated that he witnessed the act of hitting the victim through a hole in the house of Tunu. Similarly PW. 5 ghanashyam Mondal deposed that he looked through the hole that Tunu was standing with a crowbar in his hand and the victim was lying on the floor. PW. 4 in his cross-examination however has admitted that the hole through which he claimed to have been the convict hitting the victim was not shown to the 1. 0. PW. 6 Kalosona Kora in his evidence has stated that he scribed the written complaint as per the statement of Parameshwar Mondal. He has identified his handwriting. He also has identified his signature as a scribe. PW. 8 Dr. S.K. Roy conducted the post-mortem. He has deposed that multi-lacerated injuries were found in the body of the victim. 0. PW. 6 Kalosona Kora in his evidence has stated that he scribed the written complaint as per the statement of Parameshwar Mondal. He has identified his handwriting. He also has identified his signature as a scribe. PW. 8 Dr. S.K. Roy conducted the post-mortem. He has deposed that multi-lacerated injuries were found in the body of the victim. According to him the cause of death was due to shock and hemmorrhage, due to wounds found on the body of the victim which were homicidal. He has further deposed that such injuries could be caused by blunt weapons like spade and crowbar. The approximate cause of death, according to him, is head injury. Shri S. Kundu, learned Magistrate who recorded the statement of Upendra, in his deposition stated that he recorded the statement of Upendra and he denied the suggestion that the statement was not made voluntarily. PW. 10 Sukumar Misra who investigated into the crime deposed that he seized one spade. According to him edge of the spade seized by him was bloodstained. He also seized the bloodstained wearing apparel of the deceased. According to him the accused, before his arrest, was detained by the public with the bloodstained crowbar. According to him an unnatural death case was started pursuant to an information received from S. Singh over telephone at about 4. 50 hours in the morning on 29th July, 1992. Subsequently when the complaint was lodged the UD case was closed. No photographs were taken. According to him the house of Tunu contains one room and one verandah. He deposed that in the absence of his father, Upendra was in the custody of his maternal uncle. Presumably he referred to parameshwar. In his examination under section 313 Cr. PC the accused has stated that at the time of incident his son Upendra was in the room. According to him he did not strike his wife. A thief according to him had sneaked in. According to him he did not kill his wife. (8.) THE presence of the son at the place of occurrence is admitted even by the accused person. The evidence of the son is that his father dealt the deadly blows upon her mother with the help of a spade and crowbar. A thief according to him had sneaked in. According to him he did not kill his wife. (8.) THE presence of the son at the place of occurrence is admitted even by the accused person. The evidence of the son is that his father dealt the deadly blows upon her mother with the help of a spade and crowbar. The post-mortem report goes to show that lacerated injuries were suffered by the victim which could have been inflicted with the help of a spade and crowbar. The son does not appear to be inimical towards his father nor does the father appear to have any grudge against his son. The evidence is clear, consistent and credible leading to one conclusion only that the accused killed his wife following a quarrel which cropped up suddenly when the child had already gone to sleep. (9.) AT this stage the reasoning of the learned Trial Judge while punishing the convict becomes important which is as follows: "the convict lived with his wife for a long time and got his children by his wife, in spite of that the convict was so brutal to assault her and to cause her death. Definitely, capital punishment as per section 302 IPC should be imposed upon the convict. In the instant case, the convict picked-up quarrel with his wife and being excited decided to kill her and with intent to kill his wife, assaulted her with spade and thereafter with shovel. Definitely the convict had no previous plan to kill his wife but his intention to finish his wife was grown at the time when he picked-up quarrel with his wife. Considering this fact I have no hesitation to say that imprisonment of punishment in the form of imprisonment for life and with fine shall be proper to punish the convict in the instant case. Besides, the convict has also minor children who may have consolation to know that their father is alive and is undergoing imprisonment for life. " (10.) THE learned Trial Judge who had the benefit of watching the demeanor of the accused and that of the witnesses has opined, as noticed above, that the victim had no previous plan to kill his wife. He also has concluded that owing to the quarrel he got excited and decided to finish her. " (10.) THE learned Trial Judge who had the benefit of watching the demeanor of the accused and that of the witnesses has opined, as noticed above, that the victim had no previous plan to kill his wife. He also has concluded that owing to the quarrel he got excited and decided to finish her. At this stage deposition of PW 2 Upendra becomes material wherein he has deposed that he never before found his parents quarreling with each other. This, in our view, would bring the case within Exception 4 to section 300 which reads as follows: "exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel and unusual manner. Explanation.-It is immaterial in such cases which party offer the provocation or commits the first assault. " (11.) WE, therefore, are of the view that the case in hand is one of culpable homicide not amounting to murder under first part of section 304. (12.) CONSIDERING the facts and circumstances of the case and considering that at the relevant point of time the convict had three minor children, two of them female, we are of the opinion that the purpose of justice will be served if the sentence inflicted by the learned Trial Court is reduced under Part-I of section 304 of the Indian Penal Code to 10 years rigorous imprisonment, from the life imprisonment awarded by the learned Trial Court under section 302 of the Indian Penal Code. (13.) THIS appeal, therefore, partly succeeds. The punishment is reduced to 10 years rigorous imprisonment. The amount of fine shall remain the same, in default of payment of fine the convict shall undergo further rigorous imprisonment for one month. He shall be entitled to the benefit under section 428 Cr. PC. (14.) THE learned Trial Court is directed to issue a revised jail warrant. Appeal succeed partly.