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2020 DIGILAW 252 (CAL)

Rabi Mondal v. State Of West Bengal

2020-02-19

JOYMALYA BAGCHI, SUVRA GHOSH

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JUDGMENT Joymalya Bagchi, J. - Learned Counsel appearing for the appellant prays for suspension of bail. As paper books are ready, the appeal is taken up for hearing. 2. The prosecution case against the appellant is to the effect that on 21.06.1997 at 3P.M. the victim Joydev had come onto the land of Rameswar Mondal, father of the appellant, and was proceeding towards his shaddock tree to pluck the fruits. At that time, the appellant chased him and assaulted him with a knife causing bleeding injury. F.I.R. was lodged by Fulbasi Mondal, mother of the deceased (P.W. 1) under Section 304 of the Indian Penal Code against the appellant. Pursuant to investigation, charge-sheet was filed against him and case was transferred to the Court of the Additional Sessions Judge for trial and disposal. Charge was framed under Section 302 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried. Prosecution examined twelve witnesses and exhibited a number of documents. In conclusion of trial, learned Trial Judge by the impugned judgment and order dated 28.04.2010 and 29.04.010 convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to suffer life imprisonment and pay a fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six months more. 3. Mr. Mukherjee, learned Counsel appearing for the appellant argued that the prosecution case has not been proved beyond doubt. Although incident occurred in a public place, no independent witness has been examined. Deceased was illegally proceeding to pluck fruits when he was assaulted and the appellant had no intention to murder him. Hence, the conviction and sentence may be set aside. 4. Mr. Banerjee, learned Counsel along with Mr. De, learned Counsel appearing for the State argued that the eye-witnesses unequivocally stated that the appellant had struck at the victim with a knife resulting in bleeding injuries. Deceased died instantaneously. Postmortem doctor, P.W. 9, has corroborated the ocular version of the aforesaid witnesses. Hence, the appeal is liable to be dismissed. 5. I have considered the evidence on record. 6. P.W. 1, Fulbasi Mondal, is the mother of the deceased and the defacto complainant in the instant case. She deposed on 6th Ashar at about 3 P.M. her son, Joydev, went near the shaddock tree of Rameswar Mondal, father of the appellant. Seeing this, appellant enquired of Joydev what he was doing near the tree. 6. P.W. 1, Fulbasi Mondal, is the mother of the deceased and the defacto complainant in the instant case. She deposed on 6th Ashar at about 3 P.M. her son, Joydev, went near the shaddock tree of Rameswar Mondal, father of the appellant. Seeing this, appellant enquired of Joydev what he was doing near the tree. Thereafter he chased him and assaulted him with a knife on the back. He also cut his tongue. The victim succumbed to his injuries. P.W. 1 lodged F.I.R. which was scribed by P.W. 10, Kabita Singha. 7. P.Ws. 2 and 3 are the brothers and P.Ws. 5 and 6 are the sisters of the deceased. They corroborated the evidence of their mother. 8. P.W. 7, Khagen Mondal, is the uncle of the deceased. He also corroborated the evidence of other witnesses. 9. P.W. 9, Dr. Kalyan Misra, examined dead body of the victim. He deposed as follows : "1. I found bleeding from nose and mouth. 2. Rigor Mortis was set in all the forelimbs. 3. Injury with sharp edge was found on the backside of the body measuring about 2" in length and about 4" in depth on the left side. The injury approached towards thoracic cavity. 4. Injury was found on the left pleura. Injury on the left lower lobe of lung. Bleeding was present." 10. He opined that the injuries were ante mortem and homicidal in nature. 11. P.W. 12, Bhabani Prasad Sarkar, is the investigating officer of the case. He deposed that in conclusion of investigation he submitted charge-sheet under Section 304 of the Indian Penal Code. 12. From the aforesaid evidence on record, I am convinced that the appellant is the author of the injuries on the deceased which resulted in his death. All the eye-witnesses have unequivocally stated that the appellant had chased the victim and cut his tongue and struck him in the back. As a result, he suffered bleeding injuries. Ocular version of the witnesses find corroboration from the injuries noted by postmortem doctor (P.W. 9). The said doctor found bleeding injuries in the mouth and nose of the deceased as well as an incised injury on the back of the body of the victim. I find no reason to discard the aforesaid evidence on the ground the witnesses are related to the victims. The said doctor found bleeding injuries in the mouth and nose of the deceased as well as an incised injury on the back of the body of the victim. I find no reason to discard the aforesaid evidence on the ground the witnesses are related to the victims. Mere relation with the deceased is no ground to come to the conclusion that the witnesses shall be untruthful particularly when their version finds support from medical evidence. 13. However, I am of the opinion that the appellant had acted upon sudden and grave provocation. He saw the victim near the shaddock tree belonging to his father. Victim remained silent although the appellant enquired why he had come near the tree. Presuming the victim had come to steal fruits, the appellant chased him and struck him with a knife. Aforesaid circumstances, clearly give rise to an impression that the victim who had come to steal fruits from the tree belonging to the father of the appellant was chased by the latter and assaulted. These facts persuade me to hold that the incident occurred due to sudden and grave provocation offered by the deceased and the conviction of the appellant may be altered from one under Section 302 of the Indian Penal Code to Section 304 Part I of the Indian Penal Code. 14. Accordingly, sentence imposed upon the appellant is also modified. 15. I am informed that the appellant had undergone sentence for about eleven years. Hence, I reduce the sentence imposed on the appellant and I direct that he shall suffer imprisonment for the period already undergone and pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for six months more. 16. The period of detention suffered by appellant during investigation, enquiry or trial shall be set off against substantive sentences imposed on him in terms of Section 428 of the Code of Criminal Procedure. 17. The appeal is thus disposed of. 18. Accordingly, connected application for suspension of sentence being CRAN 4174 of 2019 is disposed of as infructuous. 19. Copy of the judgment along with Lower Court records be sent down to the trial court at once for necessary compliance. 20. Urgent photostat certified copy of this order, if applied for, shall be given to the parties, as expeditiously as possible on compliance of all necessary formalities. 21. I agree.