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2020 DIGILAW 1 (CAL)

Nizam Mondal v. State Of West Bengal

2020-01-02

JOYMALYA BAGCHI, SUVRA GHOSH

body2020
JUDGMENT Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 15th June, 2015 passed by the learned Additional Sessions Judge, 2nd Court, Hooghly Sadar in Sessions Trial No. 14 of 2013 [Sessions Case No. 126 of 2013) convicting the appellant for commission of offence punishable under Sections 302/323 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life for the offence punishable under Section 302 IPC and to pay fine of Rs.500/, in default, to suffer rigorous imprisonment for one month for the offence punishable under Section 323 IPC; both the sentences to run concurrently. 2. The prosecution case as alleged against the appellant is to the effect that on 1st December, 2012 at about 9:00 A.M. there was an altercation between the appellant and his wife namely, Jyotsna Begam (co-accused) on the one hand and Jahura Bibi, mother of the appellant (PW1) on the other hand over construction of a wall on their bastu land. In the course of altercation, Jahura was assaulted. Mojammel Mondal (the deceased), another son of Jahura and his wife Jarina Bibi (PW3) intervened. Thereupon, appellant hit Mojammel on the head with a wooden bat and the victim fell down. Then the appellant again hit him with a shabal on the head resulting in bleeding injuries. Jahura was assaulted by Jyotsna. The victim was shifted to Dhaniakhali Rural Hospital and thereafter to Burdwan Hospital where he expired. In the meantime, on the written complaint of Jahura Bibi, Gurap Police Station Case No. 98 of 2012 dated 01.12.2012 under Sections 341/324/326/307/506 IPC was registered for investigation. Subsequently, on the death of the victim Section 302 IPC was added to the array of offences. In conclusion of investigation, charge-sheet was filed against the appellant and his wife namely, Jyotsna Begam. The case being a sessions triable one was committed to the Court of Sessions and transferred to the court of the learned Additional Sessions Judge, 2nd Court, Hooghly Sadar for trial and disposal. Charges were framed under Sections 302/34 and Sections 323/34 IPC against the accused persons. They pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 19 witnesses and exhibited a number of documents. Four court witnesses were examined including the Medical Officer (CW1) who had treated the deceased and Jahura Bibi (PW1) at Dhaniakhali Rural Hospital. They pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 19 witnesses and exhibited a number of documents. Four court witnesses were examined including the Medical Officer (CW1) who had treated the deceased and Jahura Bibi (PW1) at Dhaniakhali Rural Hospital. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 15th June, 2015 convicted and sentenced the appellant, as aforesaid. However, co-accused namely, Jyotsna Begam was convicted and sentenced for commission of offence punishable under Section 323 of the Indian Penal Code. 3. The present appeal has been preferred on behalf of the appellant alone. 4. Mr. Avishek Sinha, learned advocate appearing for the appellant argued that de-facto complainant (PW1) has not supported the case. Hence, genesis of the case has not been proved. Although eyewitnesses claimed that the appellant had assaulted the victim twice, medical evidence on record discloses a single injury improbabilising the manner and course of assault as narrated by the eyewitnesses. Eyewitnesses have inimical relationship with the appellant due to property dispute. The incident occurred in the portion of bastu land occupied by the appellant upon the deceased and his wife trespassing into such portion of the land. Hence, the prosecution case has not been proved beyond reasonable doubt and the appellant is entitled to an order of acquittal. 5. On the other hand, Mr. Sudip Guha, learned advocate appearing for the State supported the conviction by relying on the consistent versions of eyewitnesses who claimed that the victim was initially assaulted with a wooden bat and upon falling to the ground, he was assaulted with a shabal resulting in his death. Post-mortem doctor (PW18) deposed that the injury was sufficient in course of nature to cause death. Accordingly, conviction of the appellant does not call for interference. Hence, the appeal is liable to be dismissed. 6. I have considered the evidence on record. 7. Pw1, Jahura Bibi, mother of the deceased turned hostile. She deposed that she was not present at the house and when she returned she found both her sons lying in a pool of blood after fighting. Mojammel was shifted to Burdwan hospital where he died. She denied lodging any written complaint with Gurap Police Station. 8. 7. Pw1, Jahura Bibi, mother of the deceased turned hostile. She deposed that she was not present at the house and when she returned she found both her sons lying in a pool of blood after fighting. Mojammel was shifted to Burdwan hospital where he died. She denied lodging any written complaint with Gurap Police Station. 8. Merely because the de-facto complainant has turned hostile, one cannot throw out the prosecution case as a whole more particularly when the version of the hostile witness appears to be highly improbable from other materials on record. In course of trial, prosecution examined Dr. Tushar Kanti Pakhira (CW1) who had treated not only the deceased but also the hostile witness, Jahura Bibi (PW1). Jahura had stated to the doctor that she had been assaulted with fists on the anterior chest wall. Upon examination, CW 1 found both sides of her anterior chest wall tender (Exhibit-8). Evidence of the doctor (CW1), who contemporaneously treated the de-facto complainant Jahura, clearly establishes the fact that she was present at the place of occurrence and had suffered injuries due to assault. It is possible owing to motherly affection, Jahura Bibi (PW1) withheld the truth from the court. In this factual backdrop, I am of the opinion lack of support from the de-facto complainant, Jahura Bibi (PW1), would not cause a fatal blow to the prosecution case which appears to sustain itself on other evidence on record which I propose to discuss hereinafter. 9. Pw2 (Rejina Khatun), PW3 (Jarina Bibi), PW8 (Alima Begam) and PW10 (Rahima Bibi) are the eyewitnesses to the incident. 10. Pws. 2 and 3 are the daughter and wife respectively of the deceased. In fact, PW3 is an injured witness who was treated by medical officer, PW4. PW8 is the wife of nephew (PW7) of the deceased while PW10 is his sister-in-law. All these witnesses deposed in unison that in course of quarrel over bastu property the appellant had assaulted the victim with a wooden bat on the head. When the victim fell down, he again assaulted him with a shabal resulting in bleeding injuries. The victim was removed to Dhaniakhali Rural Hospital and thereafter to Burdwan Hospital where he died. All these witnesses deposed in unison that in course of quarrel over bastu property the appellant had assaulted the victim with a wooden bat on the head. When the victim fell down, he again assaulted him with a shabal resulting in bleeding injuries. The victim was removed to Dhaniakhali Rural Hospital and thereafter to Burdwan Hospital where he died. Evidence of the said witnesses have been corroborated by other witnesses namely, PW5 (brother of the deceased), PW7 & 14 (nephews of the deceased) and PWs 9, 11, 12 & 15 (neighbours of the deceased) who came to the spot immediately after the incident. Evidence of the eye-witnesses have been criticised by the learned Counsel appearing for the appellant on the ground that there was inimical relationship between the appellant and the said witnesses over partition of bastu property. Relying on the cross-examination of P.W. 3 (Jarina Bibi), it is stated that the incident occurred within the portion occupied by the appellant after the victim and his wife had trespassed onto such portion. It is also argued that multiple assaults as made out by the eye-witnesses do not find sustenance from the medical evidence on record which speak of a single injury. 11. Taking the last point first, let me examine the medical evidence with regard to the assault on the deceased. 12. C.W. 1, Dr. Tushar Kanti Pakhira, treated the deceased at Dhaniakhali Rural Hospital. He found the patient in an unconscious condition. He noted the history of assault as assault with sabal on the head of Mojammel Mondal by Nizam Mondal, the appellant. He found the following injuries:- "1. A fresh lacerated injury 2.5 cm long x 0.5 cm width seen on the right partietal region. 2. A fresh lacerated injury 2.5 cm long x 0.5 cm width and full thickness of skull seen on right parietal region. 3. Bleeding (fresh) from the right ear, prognosis was uncertain, patient was referred to any medical college and hospital or at Chinsurah Sadar Hospital. Nature of injury is to be determined after investigation." 13. P.W. 18, Dr. Achintya Biswas, postmortem doctor, found the following injuries on the deceased:- "One lacerated wound (2"x 0.5"x bone), transversely placed over vertex 3.5" in front of external occipital protrouberance and 0.5" right lateral to the mid line. Nature of injury is to be determined after investigation." 13. P.W. 18, Dr. Achintya Biswas, postmortem doctor, found the following injuries on the deceased:- "One lacerated wound (2"x 0.5"x bone), transversely placed over vertex 3.5" in front of external occipital protrouberance and 0.5" right lateral to the mid line. On dissection hematoma 5"x 4" in the underline soft tissue, 8" long transversely placed fissure fracture of both the parietal bones involving both outer and interable. On dissection extradural and subdural haemorrhage over both parietal lobes of brain. The injuries as above showed evidence of vital reaction with irregular margins. No other injury could have been detected even after careful dissection and examination with the help of a hand lens. The intracranial haemorrhage were red in colour and fresh." 14. He deposed that the injury was sufficient in ordinary course of nature to cause death. In cross-examination, he deposed if anybody is assaulted by iron saabol and wooden dansha on his head one after another, either a single injury or multiple injuries may be found, and it depends upon the force used and the side over which the injury is found. 15. From the aforesaid medical evidence it appears that the victim had one external lacerated injury and a corresponding internal injury of hematoma and fracture of parietal bones. Assessing his eye-witness version in the backdrop of the aforesaid medical evidence it cannot be said that the medical evidence wholly discredits the version of the eye-witnesses. As per P.W. 18, postmortem doctor, assault on the head with a sabol would cause such injury. However, doctor opined that the number of injuries would depend on the force and the place where the assault was made. If one considers the ocular evidence in the backdrop of such medical opinion it would appear though the appellant may have assaulted the victim on the head twice but the force was not of such nature so as to cause more than one injury. It is also highly improbable that both the strikes by the appellant would be on the same spot causing a single injury on the head. However, I am not unmindful of the opinion of P.W. 18 that such injury on the head is sufficient in ordinary course of nature to cause death. It is also highly improbable that both the strikes by the appellant would be on the same spot causing a single injury on the head. However, I am not unmindful of the opinion of P.W. 18 that such injury on the head is sufficient in ordinary course of nature to cause death. In the light of such opinion, it is argued by the State, the assault caused by the appellant falls within the third clause of Section 300 of the Indian Penal Code and would be punishable as murder under Section 302 of the Indian Penal Code. 16. Evidence on record particularly cross-examination of the injured witness, P.W. 3, shows that the incident occurred within the portion which was occupied by the appellant and his wife. They were constructing a wall in their portion. P.W 3 and her husband Mojammel Mondal, the deceased along with P.W. 1, Jahura Bibi, obstructed such construction claiming that the same to be illegal. A quarrel ensued between the parties. In the course of the quarrel, the appellant appears to have struck the victim on the head. Although eye-witnesses claimed that the victim was struck on the head twice, a single injury is found on the head of the victim. In cross-examination post-mortem doctor, P.W. 18, admits that number of injuries on the head would depend on the extent of force used. 17. In this backdrop, I am constrained to hold that the assault on the victim by the appellant was in the course of a sudden quarrel and the appellant had acted without premeditation by using tools which were at the spot for carrying on construction. In view of a single injury found on the head of the deceased, I am of the opinion that assault on the deceased was not with such force to cause multiple injuries. Appellant had acted in the heat of passion and not in a cruel or unusual manner with the intention to murder the victim. Although the crux of the evidence of the eye-witnesses appear to be true and convincing, the possibility of their garnishing the truth vis-a-vis intention of appellant to add gravity to the crime cannot be ruled out in the light of the inimical relation between the parties over property dispute. Hence, the appellant may be extended the mitigating balm of the 4th Exception to section 300 of the Indian Penal Code. 18. Hence, the appellant may be extended the mitigating balm of the 4th Exception to section 300 of the Indian Penal Code. 18. In the light of the aforesaid discussion, I modify the conviction of the appellant and hold him guilty for commission of offence punishable under section 304 Part-I of the Indian Penal Code instead of section 302 of the Indian Penal Code and under section 323 of the Indian Penal Code. Sentence imposed on the appellant is accordingly modified. He shall suffer rigorous imprisonment for ten years and pay a fine of Rs.10,000/-, in default to suffer rigorous imprisonment for one year more for the offence punishable under Section 304 Part-I of the Indian Penal Code and the sentence imposed on the appellant punishable under Section 323 of the Indian Penal Code shall remain unaltered. Both the sentences shall run concurrently. 19. The period of detention, if any, undergone by the appellant during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure. 20. With the aforesaid modification, the appeal stands disposed of. 21. Let a copy of this judgment along with the lower court records be sent down to the trial court immediately for necessary action and execution of the sentence. 22. I agree.