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2016 DIGILAW 975 (GAU)

Kailash Mandal v. State of Assam

2016-11-03

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT & ORDER : N. Chaudhury, J. Appellant Kailash Mandal has been convicted under section 302 of the IPC by the learned Sessions Judge, Bongaigaon, in Sessions Case No. 18 (BGN)/2012 vide judgment and order dated 29.12.2012 and has been sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2,000/-, in default, rigorous imprisonment for 6 months. 2. The prosecution story is that one Basanti Poddar, as informant, lodged an written ejahar with Bongaigaon Police Station on 22.10.2011 alleging that her daughter Siuli Mondal married to the appellant herein about 6 years ago, had been killed by the appellant and his family members and her dead body was dumped outside her house in a nearby jungle. According to her, the appellant had been torturing the victim physically and mentally demanding dowry after consuming liquor at night. Bongaigaon Police Station Case No. 504/2011 under section 304 B/34 of the IPC was accordingly registered against the appellant, his mother (Amodini Mondal) and brother (Naresh Mondal). Police recovered dead body, held inquest and post mortem examination and after recording the statements of witnesses submitted charge sheet on 25.11.2011 vide charge sheet No. 306 before the learned Chief Judicial Magistrate, Bongaigaon in G.R. Case No. 692/2011 against the appellant, Kailash Mondal and his mother Amodini Mondal and prayed for dropping name of Naresh Mondal from the case. The learned Chief Judicial Magistrate by his order dated 02.02.2012 committed the court to Sessions whereupon Sessions Case No. 18 (BGN)/2012 came to be registered. The learned Sessions Judge by his order dated 22.02.2012 framed charge under section 304 B of the IPC against the present appellant, Kailash Mondal and his mother Amodini Mondal. Both the accused persons pleaded not guilty and claimed to be tried. 3. Prosecution examined as many as 9 witnesses in course of trial and exhibited 4 documents. The ejahar was exhibited as Exhibit 1, the post mortem report was exhibited as Exhibit 2, sketch map of the place of occurrence was exhibited as Exhibited 3 and the charge sheet was exhibited as Exhibit 4. 3. Prosecution examined as many as 9 witnesses in course of trial and exhibited 4 documents. The ejahar was exhibited as Exhibit 1, the post mortem report was exhibited as Exhibit 2, sketch map of the place of occurrence was exhibited as Exhibited 3 and the charge sheet was exhibited as Exhibit 4. Having considered the materials on record including the depositions of the prosecution witnesses and the statements of the accused persons under section 313 of the Code of Criminal Procedure, the learned Sessions Judge by his impugned judgment and order dated 29.12.2012 acquitted accused Amodini Mondal but convicted appellant Kailash Mondal under section 302 of the IPC. This is how the present appeal has been preferred by Kailash Mondal only challenging his conviction and sentence. 4. We have heard Ms. B. Sarma, learned Amicus Curiae on behalf of the appellant and Mr. K Konwar, learned Additional Public Prosecutor of Assam. We have also perused the lower court records. 5. PW 1, Smti. Basanti Poddar, stated in course of her deposition that victim Siuli Mondal was married to Kailash Mondal 6 years ago in Bageswari Temple. Out of her wedlock with Kailash Mondal, a child was born 5 years ago. Since beginning the victim was being tortured by the appellant and his family members physically as well as mentally. She saw injuries on the person of the victim during her life time. But her daughter wanted to lead conjugal life with the appellant. Even 7 months before the occurrence when her daughter had come to meet her on social visit, she had disclosed that she was being severely tortured. So she stayed for few days with the PW 1 when accused persons came and took her back assuring to give her clothes on the occasion of Puja. But the PW 1 was getting information from other sources that her daughter was not being treated kindly at her matrimonial house and ultimately on 21.10.2011, she was informed by members of Chaprakata club that dead body of her daughter was recovered in a jungle near her house. The PW 1 immediately rushed to the place with other relations and saw the dead body. She thereafter lodged the ejahar with police vide Exhibit 1. According to her, Kailash Mondal and his mother Amodini Mondal had killed Siuli Mondal. The PW 1 immediately rushed to the place with other relations and saw the dead body. She thereafter lodged the ejahar with police vide Exhibit 1. According to her, Kailash Mondal and his mother Amodini Mondal had killed Siuli Mondal. However, in course of her cross examination, she also disclosed that Siuli had good relation with her mother-in-law who stayed with Naresh Mondal, her another son. It came out in course of her cross examination that initially Siuli was married to one Bideshi Mondal. But after a year of the marriage she had lodged a complaint against her first husband which ultimately ended in compromise after Bideshi Mondal had paid her a cash of Rs. 30,000/-. There was no divorce with Bideshi Mondal but yet she was married to Kailash Mondal and gave birth to a male child. 6. PW 2, Biren Mandal, is a neighbour of the appellant. He supported the PW 1 by saying that Kailash was a habitual alcoholic and used to assault Siuli after coming home in inebriated condition. He first noticed the dead body of Siuli in the bamboo grove in the backyard of Sri Charan Debnath’s house and thereupon he informed Sri Charan Debnath who on turn went to the place of occurrence and also informed the VDP Secretary. This is how police was informed about the matter. In course of his cross examination, he disclosed that Kailash and his brother Naresh lived separately and Amodini lived with Naresh. About 2/3 months prior to the occurrence Kailash had a dispute with Charan Debnath with regard to a path which was compromised by village arbitration. Of course, he admitted that he did not witness Kailash assaulting Siuli. 7. PW 3, Phulchand Mandal, is yet another neighbour of the appellant. He deposed that Siuli Mondal died 7/8 months ago. He was aware that Kailash used to come home in inebriated condition and used to assault Siuli. In course of his cross examination, he supported PW 2 by saying that Amodini lived with Naresh and not with Kailash and that there was a dispute between Kailash and Sri Charan Debnath over a village path. The whole village was divided in two camps over this issue. 8. PW 4, Sricharan Debnath, is the neighbour in the backyard of whose house the dead body of victim was found. The whole village was divided in two camps over this issue. 8. PW 4, Sricharan Debnath, is the neighbour in the backyard of whose house the dead body of victim was found. There is a bamboo grove in the backyard and the dead body was found there by PW 3. This witness also stated that Kailash used to come home in an inebriated state and created ruckus. He used to assault the victim regularly. Even on the previous night of occurrence, PW 4 was informed by his wife Parbati Devi that there was heated altercation and quarrel between the victim and her husband Kailash Mondal. 9. PW 5, Dr. Jahidur Rahman, held post mortem over the dead body. He found that the victim was a healthy female of 30 years of age. There were few bruises over her body. One bruise measuring 5 cm x 5 cm was on the right knee and thigh, one bruise measuring 2 cm x 4 cm was on the left forearm whereas a bigger bruise measuring 6 cm x 6 cm was present on the left lower part of her chest. He found paretonial rupture and rupture of mesentery along with corporation intestine in multiple areas. The right lobe of the liver was torn. According to him, these internal injuries resulted from blunt abdominal injury and caused abdominal haemorrhage. Death occurred due to shock arisen out of such abdominal haemorrhage. He proved Exhibit 2 post mortem report. 10. PW 6, Mantu Mahanta, stated on oath that Siuli died about 10 months ago. He had heard that Kailash used to come home in an inebriated state every night and used to quarrel with Siuli. He had also heard that Kailash used to demand dowry. Having got the news about recovery of the dead body of Siuli in the bamboo grove at the backside of the house of Sricharan Debnath, he went there and saw the dead body. 11. PWs 7, Pradip Paul, on the other hand, asserted that although there used to be occasional quarrel between Kailash and Siuli but they had been happily living their conjugal life after marriage. He did never witness any quarrel between them. 11. PWs 7, Pradip Paul, on the other hand, asserted that although there used to be occasional quarrel between Kailash and Siuli but they had been happily living their conjugal life after marriage. He did never witness any quarrel between them. In course of his cross examination, he made a revelation that immediately after recovery of the dead body of Siuli, Sricharan, Dhiren, Phulchan and other villagers took out Kailash from his house and kept him tied in a school field. Amodini was also called from home and made to sit there. When police arrived both of them were handed over to the police. The indication made by him in course of his cross examination is that there was enmity between Sricharan and Kailash over a village path and Sricharan did not miss the opportunity to settle his score against Kailash after the dead body of his wife was discovered. This witness thus, made an overt attempt to establish enmity between PW 4 (Sricharan) and Kailash. But at the same time he did not deny that Kailash was an alcoholic and had the habit of assaulting his wife every night. From the depositions of all these neighbouring witnesses, one common thing that surfaced is that Kailash is a habitual drinker and once he was in inebriated condition he used to mercilessly beat his wife. While all the neighbouring witnesses spoke of regular assault by Kailash over his wife, it was also stated at the same time that the same used to take place in the evening after he returned home in the influence of liquor. 12. Prosecution did not exhibit the inquest report but the same is available on record. We have perused the same for our satisfaction to see as to what condition the dead body of the victim was recovered. The dead body was recovered in the bamboo grove where inquest was held by the police on 22.10.2011. In course of inquest it was found that the deceased was a lady of thin frame. The neighbours disclosed at the time of inquest itself that accused Kailash Mondal used to assault her every night after taking liquor and even on the previous night of the occurrence, Siuli Mondal was assaulted by Kailash. From the evidence adduced by the prosecution it has been established that Amodini did not live with Kailash and the victim. The neighbours disclosed at the time of inquest itself that accused Kailash Mondal used to assault her every night after taking liquor and even on the previous night of the occurrence, Siuli Mondal was assaulted by Kailash. From the evidence adduced by the prosecution it has been established that Amodini did not live with Kailash and the victim. Kailash lived with victim and their 5 year old minor son. He used to return home every night after taking liquor and assault his wife. Even on the previous night of the occurrence, the victim was not spared. As revealed from the inquest report, the victim was a woman of about 30 years and a height of 5 feet. She had a frail frame. It is probable that she could not withstand the torture meted out to her on the previous night of the occurrence. The nature of injuries inflicted on her person particularly at the lower part of her left chest caused injury to her liquor and even tearing of the mesenteries. Doctor found multiple perforation of the intestine on post mortem examination. There is no cutting or piercing injury. So it is clear that no weapon was used for causing such injuries. The doctor opined that the intra-abdominal haemorrhage was caused by blunt abdominal injury. It is thus apparent that such injuries are likely to be caused by a forceful punch or a kick at the upper abdomen of the victim. 13. The accused is none other than husband of the victim and there was no third person in the house to cause such injury as stated above. Rather, there are plenty of evidence to hold that the accused used to beat her every evening under the influence of liquor. Even the previous night of occurrence was also no exception. The accused in his statement under section 313 of the Code of Criminal Procedure has failed to give any explanation as to how these injuries were inflicted on the person of his wife. He could not say under what circumstances the dead body of his wife came in the bamboo grove at the backyard of PW 4 and door of his house was opened. He could not say under what circumstances the dead body of his wife came in the bamboo grove at the backyard of PW 4 and door of his house was opened. From these circumstances, the inevitable conclusion is that the injuries were caused by none other than the accused Kailash on the person of his wife in the influence of liquor and incidentally the victim succumbed to the injuries. The evidence on record does not suggest that the accused had any intention to kill the victim. In that event, he could have assaulted her with some weapon. By the time he had developed the habit of beating his wife after taking liquor almost as a daily ritual and so possibly he did not have even the knowledge that his beating on that fateful night would bring about death to the life of his wife with whom he was leading conjugal life for over 6 years and had a minor son in his lap. The acts committed by the accused, therefore, will fall under Exception (4) of Section 300 of the IPC. The offence committed by the accused, thus, amounts to culpable homicide not amounting to murder and he is liable to be convicted under Part-II of Section 304 of the IPC. The appeal is accordingly partly allowed and the conviction is converted into a one under section 304 Part-II of the IPC. The sentence is modified to rigorous imprisonment for 5 years maintaining the amount of fine imposed by the learned trial court. It is stated at the bar that the accused had already suffered 5 years 1 month 10 days (including remission period in jail) and so he has already served the sentence. He shall be released forthwith from jail. 14. Send down the lower court records.