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2016 DIGILAW 114 (CAL)

Ofel Mondal v. State of West Bengal

2016-02-02

RAJIV SHARMA, SHIVAKANT PRASAD

body2016
JUDGMENT : SHIVAKANT PRASAD, J. This appeal is directed against the judgment and order dated July 31, 2008 & August 2, 2008 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Malda, in Sessions Trial Case No. 11(12)/2007 corresponding to Sessions Case No. 335/2007 convicting the Appellant No. 1 under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-(Rupees one thousand), in default to suffer rigorous imprisonment for one year and further convicting the Appellant No. 2 of the charge under Section 307 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of rupees one thousand in default to suffer rigorous imprisonment for six months for the offence punishable under Section 307 of Indian Penal Code. Brief facts of prosecution case leading to the instant appeal is that there was a dispute over the pathway with the accused persons and the prosecution parties over which a Civil case was pending in Malda Court. There was inconvenience in egress and ingress to and from the house of the prosecution party due to stagnation of rain water in the ditches on the pathway. On 20.3.2005 at about 7:15 a.m father of defacto complainant filled up the ditches with earthover the pathway. At that time the de facto complainant, the son of the victim was not in the house. His father was sitting in the verandah of the house when the accused persons entered into his house and resisted in the work of his father who had asked the accused persons to wait for a while as he would call his son. Thereafter, accused Dipak Mondal, son of Suren Mondal asked other accused persons to behead Muliram Mondal, the father of the defacto complainant. On hearing, the accused persons attacked Muliram with hansua, lathi, spade and arrows and they also assaulted Muliram. When Gunadhar Mondal tried to rescue Muliram, he was also assaulted by the accused persons. The victim received serious injury who was taken to hospital but he was declared brought dead. Gunadhar was also removed to Bedrabad PHC for treatment. The case was committed to the court of sessions and transferred to the Court of learned Additional Sessions Judge, Fast Track Court-III, Malda. The victim received serious injury who was taken to hospital but he was declared brought dead. Gunadhar was also removed to Bedrabad PHC for treatment. The case was committed to the court of sessions and transferred to the Court of learned Additional Sessions Judge, Fast Track Court-III, Malda. Charge was framed against all the accused persons under Sections 447/302/307/34 of Indian Penal Code and the accused persons abjured the guilty and claimed to be tried. To prove the charges against the accused persons the prosecution examined as many as eleven witnesses, and exhibited some documents when defence examined none but by way of cross-examination tried to show the improbability in the prosecution case. On conclusion of trial, the learned Judge by the impugned judgment dated 31.7.2008 and order of sentence dated 02.8.2008 convicted the Appellant No. 1 and 2 under Section 302 and 307 of Indian Penal Code respectively in Sessions Trial No. 11(12)/2007 corresponding to Sessions Case No.335/2007 to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for one year for the offence punishable under Section 302 of Indian Penal Code in respect of the appellant no. 1 and to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for six months in respect of the Appellant No. 2 while the learned Judge was pleased to acquit the accused persons, namely, Dipak Mondal, Paban Mondal and Sasti Mondal of all the charges. Being aggrieved by and dissatisfied with the above judgment and order dated 31.7.2008 and 02.8.2008 respectively the appellants preferred this appeal inter alia on the grounds that the learned Judge erred in law and in fact in appreciating evidence of the witnesses which is sheer contradiction to the statement recorded as First Information Report with that of statement under Section 161 of Code of Criminal Procedure in as much as the entire complexion of the case was changed in course of trial on the testimony of the witnesses as, as per their former statements who was the main accused, he has been acquitted on the basis of their testimony in Court which casts serious doubt on the trustworthiness and reliability of the witnesses and the evidence are not trustworthy owing to its nature, fraught with embellishment, inconsistencies, contradictions and material discrepancies. Secondly, that the learned Judge failed to appreciate legal necessity and significance of examining the accused under Section 313 of the Code of Criminal Procedure and examined the appellants in the instant case in such a manner which excluded the most relevant questions to be asked on which conviction was made prejudicial to the interest of the accused. Accordingly, the appellants have prayed for setting aside the impugned judgment and order as bad in law. Now, the point for decision is as to whether the judgment impugned is tenable in law and in fact. At the outset learned Counsel for the appellants has submitted that the former statement recorded as First Information Report and recorded under Section 161 of Code of Criminal Procedure in as much as the entire complexion of the case was changed in course of trial on the testimony of the witnesses. It is pointed out that the main accused has been acquitted casting a serious doubt on the trustworthiness and reliability of the witnesses. It is further submitted that the learned Judge has erred in law and in fact in appreciating legal significance of the First Information Report in the instant case when the version given by the First Information Report maker in the Court is virtually different from that given in the First Information Report and on that score his evidence ought to have been discarded as tainted with falsity. On the basis of written complaint, formal FIR was drawn up and Baishnabnagar P.S. Case No. 38/2005 dated 28.3.2005 under Sections 447/325/326/304/34 IPC was started against six accused persons namely (1) Ofel Mondal, (2) Paban Mondal, (3) Sasti Mondal, (4) Sadai Mondal, (5) Dipak Mondal and (6) Ajay Mondal. On the basis of written complaint, formal FIR was drawn up and Baishnabnagar P.S. Case No. 38/2005 dated 28.3.2005 under Sections 447/325/326/304/34 IPC was started against six accused persons namely (1) Ofel Mondal, (2) Paban Mondal, (3) Sasti Mondal, (4) Sadai Mondal, (5) Dipak Mondal and (6) Ajay Mondal. But, accused namely Ofel Mondal and Sadai Mondal were convicted for the charge under Section 302 IPC and Sadai Mondal substantially was sentenced for rigorous imprisonment for ten years under Section 307 IPC whereas rest four accused persons named in the FIR were acquitted by the learned Trial Court on the observation that no case has been made out by the prosecution against them since no overt act was spoken against them by the eye witnesses of the prosecution and to that effect there is no concrete evidence to convict them with the help of Section 34 of Indian Penal Code and accordingly, the accused namely Dipak Mondal, Paban Mondal and Sasti Mondal were given benefit of doubt and acquitted of the charges levelled against them and were set at liberty. It has been clearly found by the learned Trial Court that there is no whisper in the oral testimony of the eye witnesses that the said acquitted accused persons did any assault upon the deceased or the injured Gunadhar Mondal (P.W.-4). So it cannot be said with certainty that the aforesaid accused persons shared the common intention with accused appellants. Dipak Mondal is an FIR maker and the complaint was ascribed by Bhujanga Mondal. Occurrence took place when father of P.W.-2 Dipak Mondal was sitting on the verandah of the house when opposite parties came to the house and restrained his father then his father told them to wait so that he would call his son. At that juncture Dipak son of Suren directed the accused persons named in the FIR saying that “Muliramer Mathata Kete Niye Ai” and they started beating his father by ‘Hansua’, ‘Sticks’, ‘Spade’ and also ‘Bow’. On being assaulted his father fell unconscious and when taken to Hospital he was declared dead. At that juncture Dipak son of Suren directed the accused persons named in the FIR saying that “Muliramer Mathata Kete Niye Ai” and they started beating his father by ‘Hansua’, ‘Sticks’, ‘Spade’ and also ‘Bow’. On being assaulted his father fell unconscious and when taken to Hospital he was declared dead. The maker of the FIR Dipak Mondal son of Late Muliram Mondal has stated in clear crystal term that while father was filling the village path with earth in front of his house, the accused persons had attacked with Hansua’, ‘Sticks’, ‘Spade’ and ‘Arrow’ and entered into his house and accused Ofel Mondal gave blow with back side of a spade on the head of his father, while Gunadhar Mondal attempted to save his father, accused Sadai Mondal gave ‘Hansua’ blow on his head and both his father and Gunadhar Mondal received bleeding injuries on their heads and fell on the ground. He has deposed that Bhujanga Mondal has ascribed the written complaint as per his dictation which was read over and explained to him and he put his signature on being satisfied of the contents of the FIR, marked as Exbt.-2 on proof. It is contended on behalf of the appellants that the accused persons have been implicated in a false case since litigation was going on between prosecution parties and the accused persons over the said pathway. Though, it is admitted by FIR maker that there was a long standing litigation between them and the accused persons but that cannot be a ground for discarding the FIR which finds corroboration by its maker to the extent that his father was attacked mainly by accused Ofel Mondal with the backside of spade on the head of his father and so also Gunadhar Mondal (P.W.-4) who was assaulted by the accused appellant Sadai Mondal. Therefore, the evidence is in general agreement. In so far as legal significance of First Information Report is concerned, it is settled principle of law that a First Information Report is not an encyclopaedia to contain each and every details of the incident. It is misconception to regard the First Information Report as a document which should contain the entire case in the prosecution, including the names of the witnesses. Its main purpose is to give information of a cognizable offence to the police and set them in motion. It is misconception to regard the First Information Report as a document which should contain the entire case in the prosecution, including the names of the witnesses. Its main purpose is to give information of a cognizable offence to the police and set them in motion. It can be used for the purpose of corroboration or for contradiction by its maker. The evidence of P.W.-1 Gedu Mondal who has categorically deposed that when he went to the house of deceased Muliram to fetch a bamboo from the deceased he saw Ofel Mondal, Sasti Mondal, Sadai Mondal, Dipak Mondal and Paban Mondal assaulting the deceased Muliram Mondal by means of “Lathi’, ‘Spade’, ‘Hansua’ and accused Ofel Mondal gave a blow by the back side of the ‘Spade’ on the head of Muliram Mondal and Gunu Mondal alias Gunadhar Mondal attempted to resist the accused Ofel Mondal when accused Sadai Mondal gave blow of ‘Hansua’ on his head. As a result of such infliction by ‘Spade’ on the head of Muliram Mondal and Hansua blow on the head of Gunadhar Mondal, they sustained bleeding injuries. It is true that there is exaggeration in his deposition but it is evident that the appellant no. 1 inflicted injury on the head of the deceased Muliram whereas Sadai Mondal gave hansua blow causing injury on the head of Gunadhar Mondal. Therefore, exaggeration by P.W.-1 cannot be considered as a material contradiction to the prosecution case. Learned Counsel for the appellants further submitted that P.W.-1 is ‘Behai’ of P.W.-2. P.W.-2 is son of the deceased Muliram Mondal, P.W.-7 and P.W.-8 are nephews of the deceased Muliram Mondal, P.W.-4 is the brother of P.W.-8 who are related witnesses and interested in seeing to it that accused persons are convicted and punished. Thus it is urged that no credence can be placed on their evidence inasmuch as they are inimical to the appellants due to long standing dispute over the pathway. On appraisal of the evidence on record, we find corroboration of the prosecution case by ocular testimony of witnesses coupled with the medical evidence, although, the witnesses aforesaid are related to the deceased Muliram Mondal but they cannot be considered as interested witnesses. It is well established principle of law that testimony of witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. It is well established principle of law that testimony of witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reason. Our attention is invited by the learned Counsel for the appellants stating that there are houses of Mihir Mondal, Sadai Mondal, Durga Mondal, Dinesh Mondal shown in the explanatory index of a sketch map of the place of occurrence being A, B, C, D, G prepared by the Investigating Officer but the inmates of those houses have not been examined who could be independent witnesses and that P.W.-1 in his oral testimony has admitted that there are so many persons’ houses surrounding the house of the deceased and the names of such persons are, Suchen, Ratan, Gunadhar, Sarbeswar and others who have not been examined. We are unable to persuade ourselves with such contention of the learned counsel. It is a clenched position of law that while dwelling upon the issue of non-examination of material witnesses, it has been succinctly expressed that when the witness is not the only competent witness, who would have been fully capable of explaining the factual score correctly and the prosecution stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, it would be inappropriate to draw an adverse inference against the prosecution. The witnesses have deposed about the genesis of occurrence, the participation and involvement of the accused persons in the crime and the injuries inflicted on the deceased Muliram and injured Gunaram, ergo, non-examination of any other witnesses who might have been available on the scene of occurrence would not make the case of prosecution unacceptable as non inclusion of their name in the charge sheet and their non examination does not go to the root of the prosecution case. Be that as it may, we observe that Gunadhar Mondal, P.W.4 being the injured witness is the first eye witness to the occurrence. So heavy weight and credence has to be given on his ocular testimony. Be that as it may, we observe that Gunadhar Mondal, P.W.4 being the injured witness is the first eye witness to the occurrence. So heavy weight and credence has to be given on his ocular testimony. We support our decision on the authority in Abdul Sayeed v. State of M.P. reported in (2010) 10 SCC 259 , wherein it has been observed that the question of weight to be attached to the evidence of a witness who himself was injured in the course of the occurrence. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. We further find from the evidence of the Autopsy doctor coupled with the Post Mortem report, Exbt.-6 that deceased Muliram Mondal’s death was homicidal and ante mortem in nature due to injuries caused by blunt and sharp cutting weapon and the said injuries were sufficient to cause death in ordinary course of nature. The ‘spade’ having sharp cutting edge and ‘hansua’ are deadly weapons which matched with reference to injuries found on the dead body of Muliram Mondal as deposed by Autopsy doctor, P.W.-6 whose medical evidence finds corroboration by the eye witnesses, viz, P.Ws- 1, 4, 7 and 8. Defence has pointed out that P.W.-6 has stated that probable time of death may be before 36 hours of examination and that there is no depiction in the P.M. report (Exbt-6) as to which injury out of four injuries viz. (1) 3/4th” X ½” X ½” lacerated injury on forehead, (2) 3” X 1” haematoma over the back of scalp, (3) 1”/ ½ “ incised wound over left wrist, (4) Two small bruises over right forearm was pivotal for causing death of the deceased. Opinion suggested to the autopsy surgeon by the defence during his cross examination to the effect of probable time of death before 36 hours of PM examination in our considered view is an opinion evidence and cannot be ground to discredit the eye witnesses. P.W.-10 Dr. Opinion suggested to the autopsy surgeon by the defence during his cross examination to the effect of probable time of death before 36 hours of PM examination in our considered view is an opinion evidence and cannot be ground to discredit the eye witnesses. P.W.-10 Dr. Manabendra Mondal, attached to Bedrabad B.P.H.C. as Medical Officer on 20.3.2005 examined Gunadhar Mondal and found deep cut injury over the scalp of head measuring 10 c.m. up to bone approximate 1/2 inch. In his opinion said injury might be caused by means of sharp cutting weapon such as ‘Hansua’. P.W.-10 has stated that the patient made statement before him that incident took place on 20.3.2005 at about 9:00 a.m. at Dariyapur and he himself came to the hospital for treatment at about 10:10 A.M. P.W.-10 proved the injury report and his signature, Exbt.-8 and Exbt. 8/1 and injuries sustained by Gunadhar Mondal on his head. As depicted in medico logical report, injuries could not be caused on account of fall on sharp substance. We do not find any irregularity in recording statement of the appellants accused persons under Section 313 of Cr.P.C. Lastly, the learned Counsel for the defence submits that conviction should not be under Section 302 IPC against Ofel Mondal because all the witnesses have stated that blow on the head of the deceased was by the back side of the spade. As such, the intention of committing murder of the deceased was not writ large. Learned Counsel for the appellants has relied on a decision of Selvam Vs. State of Tamil Nadu represented by Inspector of Police reported in (2013) 1 Supreme Court Cases (Cri) 63 : (2012) 10 Supreme Court Cases 402 and Buddhu Singh and Others Vs. State of Bihar (now Jharkhand) reported in (2013) 3 Supreme Court Cases (Cri) 460 : (2011) 14 Supreme Court Cases 471 in which case the conviction and sentence under Section 302 IPC was modified to one under Section 304 Part-II IPC and the appellants were sentenced to the period already undergone for having suffered jail imprisonment for five years. State of Bihar (now Jharkhand) reported in (2013) 3 Supreme Court Cases (Cri) 460 : (2011) 14 Supreme Court Cases 471 in which case the conviction and sentence under Section 302 IPC was modified to one under Section 304 Part-II IPC and the appellants were sentenced to the period already undergone for having suffered jail imprisonment for five years. In the cited decision it has been observed that there was hardly anything on record which can be said against accused Ledwa Singh and Balchand Singh though the common intention on their part could be attributed since they had done the overt act of grappling with and pinning down the deceased, the accused Buddhu Singh dealt with an axe-blow which could not be said to be intended towards the head. It could have landed anywhere. However, it landed on the head of the deceased. Therefore, the element of intention was ruled out In the case in hand, Gunadhar Mondal, P.W.-4 was medically examined by the doctor on 28.3.2005 at 10:00 A.M. He was admitted in the Hospital, the injury shown in the injury report, Exhibit-8 is 10c.m. deep could be marked over scalp (sharp cut). The size of the injury in inches, length, depth is 10 c.m. up to the bone. Such injury was inflicted by ‘Hansua.’ Prognosis was good as per the injury report. The appellant Ofel Mondal was convicted and sentenced under Section 302 IPC to suffer life imprisonment and to pay fine of Rs. 1000/- in default, to undergo one year rigorous imprisonment. Appellant No.-2 Sadai Mondal was convicted and sentenced under Section 307 IPC to suffer rigorous imprisonment for ten years and to pay find of Rs. 1000/- and to suffer six months rigorous imprisonment. The order dated 23.12.2013 of this Court passed in connection with CRAN 3879/2013 shows that appellant no. 2 Sadai Mondal was released on bail. However, the appellant no. 1 Ofel Mondal was not granted the privilege of bail. So the appellant no. 1 is in jail since the date of judgment and order of conviction on 31.7.2008 whereas the appellant no. 2 is on bail on and from 23.12.2013. 2 Sadai Mondal was released on bail. However, the appellant no. 1 Ofel Mondal was not granted the privilege of bail. So the appellant no. 1 is in jail since the date of judgment and order of conviction on 31.7.2008 whereas the appellant no. 2 is on bail on and from 23.12.2013. Although, it appears that the injury was inflicted on vital part being the head of the injured P.W.4 resulting in ten inches bone deep injury on the scalp but since the prognosis was good, the injury was obviously not fatal in nature to construe an attempt to commit murder of the injured P.W.4. The appellant no. 1 dealt with back side of the spade causing severe injury on head of the deceased Muliram. Therefore, intention to commit murder of the deceased was not writ large in view of the fact that, had the appellant no. 1 intention to commit murder of Muliram he would have used the sharp edge of the spade. Pulverising the totality of evidence on record, we are of the view that the conviction and punishment of life imprisonment under Section 302 IPC as against appellant no.1 is required to be modified to this extent that the conviction be recorded under Section 304 Pt. II IPC and the punishment be modified accordingly with imprisonment for ten years. As regards appellant no. 2, considering the medical evidence of P.W.10 and the injury report depicting the prognosis as good, we modify the conviction and sentence of ten years rigorous imprisonment under Section 307 IPC to one under Section 326 IPC and sentenced to a period already undergone. But the fine amount imposed by the learned Trial Court is affirmed. Thus, the appeal is partly allowed. Let the Lower Court Record together with a copy of this Judgment be sent down to the learned Trial Court forthwith. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.