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2010 DIGILAW 1066 (CAL)

Tapan Kumar Mondal v. STATE OF WEST BENGAL

2010-08-26

ASHIM KUMAR BANERJEE, RAGHUNATH RAY

body2010
JUDGMENT Banerjee, J. 1. ON September 29,1995 at about 7.00 a.m. Dilip Kumar Mondal, P.W.1 was having tea with his father Bangshi Charan Mondal sitting on the varandah on the southern side of his house. His sister Champabati was serving tea to them. At that time his cousin (uncle's daughter) Kali came to their house. When Kali was about to enter into the room his cousin brother (uncle's son) Tapan resisted. Bangshi protested the act of Tapan. Bangshi said "Kali has come to our house. What does it matter to you". Being annoyed Tapan threatened Bangshi with dire consequence and brought out a Khil (a wooden plunk used for closing the door) and struck forcibly on Bangshi's head from the back. Bangshi died on the spot. His head cracked and was profusely bleeding. Bonomali (father of Tapan) instigated Tapan and asked him to hurt Bangshi in such a manner that he would die. 2. DILIP lodged a complaint with the Police. Police made an inquest and had the post mortem done. Doctor opined that cause of death was due to head injury which might be homicidal in nature and ante mortem. Tapan and Bonomali were charged for committing offence under Section 302 read with Section 109 of the Indian Penal Code. Both of them pleaded innocence and opted to be tried. P.W.1 (Dilip Kumar Mondal): 3. DILIP narrated the incident in detail. His narration was consistent to the FIR lodged by him. Since he was illiterate he narrated the incident to Sakti Bhowmick, Swapan Bhowmick, Anil Hajra and others. Sakti scribed the FIR duly signed by DILIP. He proved his complaint as well as the signature appearing thereof. In cross-examination he deposed that the 'Khil' was unclean and unparallel and did not contain any blood stain. P.W.2 (Bonomali Mondal, not the accused) 4. THIS witness was a constable. He produced material Exhibit No.1 (playing cards) from Tamluk Police Station. P.W.3 (Champabati Mondal): Witness was the sister of P.W.1 and daughter of the victim. She witnessed the incident. She was consistent with his brother Dilip. P.W.4 (Kali Mondal): 5. THIS witness was the cause of the incident. She was twelve years when she deposed as per her statement. She was about seven/eight years old when the incident had occurred. She also narrated the incident consistent with Dilip and Champabati. She could not be shaken in cross- examination. P.W.5 (Sakti Bhowmick): 6. P.W.4 (Kali Mondal): 5. THIS witness was the cause of the incident. She was twelve years when she deposed as per her statement. She was about seven/eight years old when the incident had occurred. She also narrated the incident consistent with Dilip and Champabati. She could not be shaken in cross- examination. P.W.5 (Sakti Bhowmick): 6. HE was a post occurrence witness. HE briefly stated the incident which he had heard from Dilip. HE proved the FIR written by him and signed by Dilip. HE found blood on the floor. Police took blood stained earth. HE, however, could not say whether the wearing apparel of Bangshi had blood stain or not. PW-6 (Swapan Bhowmick): Complainant was also a post occurrence witness. He was a seizure witness. He was declared hostile. He was permitted to be cross- examined by the prosecution. However in cross-examination his narration of the incident supported the case of the prosecution. P.W.7 (Anil Kumar Hazra): 7. SRI Hazra was also a post occurrence and seizure witness. He was not definite from whom he got the information. P.W.8 (Dr. Tusar Kanti Maity): 8. DR. Maity conducted the post mortem. According to him, the cause of death was due to head injury, homicidal and ante mortem in nature. He deposed that by a single stroke from behind parietal region might be affected but it would depend upon the sitting posture. P.W.9 (Sukumar Pal): Mr. Pal was a constable attached to Tamluk Police Station. He carried the dead body for post mortem examination. P.W.10 (Subrata Kr. Banik): 9. THE witness was the sub-inspector at Tamluk Police Station. He received the written complaint through Home Guard Joydeb Biswas and registered the same. P.W.11 (Subhankar Dey): 10. HE was also a Sub-Inspector attached to Tamluk Police Station. HE did the inquest of the dead body. HE seized the weapon as well as blood stain clothes of the victim. HE also received the written complaint and sent it to the Police Station through Joydeb Biswas, a Home Guard. HE identified the weapon. HE also briefly narrated the statements made by the witnesses before him recorded under Section 161 of the Criminal Procedure Code. Both the accused denied the charges brought against them while they were being examined under Section 313 of the Code of Criminal Procedure. 11. HE identified the weapon. HE also briefly narrated the statements made by the witnesses before him recorded under Section 161 of the Criminal Procedure Code. Both the accused denied the charges brought against them while they were being examined under Section 313 of the Code of Criminal Procedure. 11. THE learned Additional Sessions Judge, Tamluk in the District of Purba Midnapur considered the evidence so came out during trial and ultimately held that there was no sufficient material to implicate Bonomali. The learned Judge was however satisfied that the prosecution was able to prove the charge so brought as against Tapan. Tapan was held guilty of the offence committed under Section 302 whereas Bonomali was acquitted of the charges. Tapan was sentenced for imprisonment for life together with a fine of Rs.5000/-and in default to suffer further simple imprisonment for four months. 12. BEING aggrieved Tapan filed the instant appeal which we heard on the above mentioned dates. Mr. Sandip Kumar Bhattacharya, learned Counsel appearing for the appellant contended as follows:- (i) The offending weapon did not have any blood stain. Hence, the prosecution story was improbable. (ii) The offending weapon was not sent for chemical examination. The blood stained earth so seized" by the Police was not compared with the blood stain, if any, found on the dead body of the victim. (iii) The doctor was not definite about the cause of the death and kept his opinion pending till arrival of the Viscera Examination Report. Such report was not tendered in evidence. (iv) The wearing apparel of the victim did not have any blood stain: (v) The only eyewitness being P.W.6 was declared hostile. Others were interested witnesses. (vi) From the evidence it would appear that the death was caused by a single blow. The learned Judge did not consider the force so applied by the accused which could cause death of the victim by a single blow. No discussion was had on that score. 13. MR. Bhattacharya, in support of his contention relied on the decision in the case of Ajay Singh v. State of Maharashtra, reported in 2007 All India Reporter Supreme Court Weekly Page- 3845. 14. MR. Bhattacharya as and by way of alternative submission contended that this could at best be termed as an offence under Section 304, Part-11 and not a case under Section 302. Mr. 14. MR. Bhattacharya as and by way of alternative submission contended that this could at best be termed as an offence under Section 304, Part-11 and not a case under Section 302. Mr. Subhasish Pachhal, learned Counsel appearing for the prosecution contended as follows:- (i) The purpose of examination of the accused under Section 313 was to place incriminating evidence that came out during trial before the accused. The prosecution was able to discharge such onus in the present case. (ii) Under Section 106 read with Section 114 of the Evidence Act it was the duty of the accused to disclose as to how the death could occur as he was admittedly present at the time of incident failing which Court was entitled to draw adverse inference against the accused, (iii) All the prosecution witnesses were consistent and they corroborated each other specially the eye witnesses being P.W.1 (Dilip Kumar Mondal), P.W.3 (Champabati Mondal) and P.W.4 (Kali Mondal). (iv) The doctor's evidence was so clear that left no ambiguity and according to him the death was due to head injury, homicidal and ante mortem in nature. (v) The medical evidence was sufficient to prove that the death was caused due to head injury. Such head injury was caused by Tapan as came out through the evidence of the prosecution witnesses. (vi) No suggestion was given to the prosecution witnesses with regard to the place of occurrence and in fact there was no inconsistency on that score as erroneously contended by the appellant. 15. ON the issue as to whether the case could be termed as an offence committed under Section 304, Part-11 Mr. Pachhal contended that it was not a case where injury was caused on the spur of the moment. ON analysis of the evidence it would appear that Tapan threatened the victim with dire consequence and then brought the offending weapon and hit the victim. Hence, it was a preconcerted effort to kill the victim. 16. WE have considered the rival contentions. From the consistent evidence that came out during the trial it would appear to us that the fact that Japan hit the victim with the offending weapon was proved beyond doubt. Victim died on the spot. The medical evidence so adduced by the doctor conclusively proved that the death was caused due to head injury. From the consistent evidence that came out during the trial it would appear to us that the fact that Japan hit the victim with the offending weapon was proved beyond doubt. Victim died on the spot. The medical evidence so adduced by the doctor conclusively proved that the death was caused due to head injury. Hence, on a sum total of the evidence we do not find any scope to come to a different conclusion other than what had been observed by the Court below. The decision in the case of Ajay Singh (supra) was cited to support the contention of the appellant that all incriminating evidence were not placed before the accused while examining them under Section 313 of the Code of Criminal Procedure. Hence, the proceeding was vitiated by illegality. This is well settled principle of law. However applicability of the same would differ from case to case considering its peculiar nature. In the instant case we find that each and every piece of incriminating evidence that came out during trial was put to the accused. The accused understood the same and replied. Hence, we do not find any infirmity on that score. 17. LOT of emphasis was put on the fact that the offending weapon did not have any blood stain. From the evidence we find that the accused gave a single blow which was instantaneous. We can infer that the blow was so forceful that the victim died on the spot, may be due to his advanced stage. It is not unusual that when the injury was caused by a single blow it would take time for the blood to come out. But blow was given and on a reverse action the weapon was withdrawn. Hence, there might not be any blood stain on the weapon. Had there been more than one blow it would have been unusual for the offending weapon not having any blood stain. 18. EMPHASIS was also put on the fact that wearing apparel did not have any blood stain. We find that a Vest and "Lungi" were seized. If the victim died on the spot after a single blow it would not be unusual that the wearing apparel might not Have any blood stain. Our view would get support if one looks at the inquest report with regard to the position of the dead body. We find that a Vest and "Lungi" were seized. If the victim died on the spot after a single blow it would not be unusual that the wearing apparel might not Have any blood stain. Our view would get support if one looks at the inquest report with regard to the position of the dead body. In any event the ocular evidence so came through witnesses being corroborated by the post occurrence witnesses including the hostile witness proved the incident as well as the involvement of the appellant. Such ocular evidence being supported by concrete evidence of the post occurrence witnesses and strengthened by the medical evidence, in our view, was more than sufficient to write a judgment of conviction. The appeal fails and is hereby dismissed. 19. THERE would be no order as to costs. 20. THE appellant is now in jail. He is directed to serve out the remaining part of his sentence as awarded by the learned trial Judge'. A copy of this judgment be sent to the correctional home, where the appellant is suffering his sentence, for his information. 21. LET a copy of this judgment along with Lower Court Records be sent to the Court of learned trial Judge for information and necessary action.