Sri Sukumar Mondal vs The State Of West Bengal & Anr
2021 Latest Caselaw 4377 Cal

                    IN THE HIGH COURT AT CALCUTTA

                      Criminal Appellate Jurisdiction

Before: The Hon'ble Mr. Justice Shivakant Prasad


                               CRA 717 of 2018
                              (Via video conference)


                          Sri Sukumar Mondal
                                   Vs.
                     The State of West Bengal & Anr.

For the appellant             :      Mr. Suman Das

For the State                 :     Mr. N.P. Agarwala.
                                    Mr. Iqbal Kabir
                                    Mr. Pratick Bose

Heard on                      :      24.08.2021

Judgement delivered on        :      24.08.2021

Shivakant Prasad, J. :


      The instant appeal is directed against the judgment dated

09.10.2018

and order dated 10.10.2018 respectively passed by the

Additional Sessions Judge, Kalyani, Nadia in connection with Sessions

Trial No. 02(07)16 corresponding to Sessions Case No. 07(10)15 thereby

convicting the appellant for commission of offence under Sections

324/307 of the Indian Penal Code and sentencing him to suffer rigorous

imprisonment for three years with a fine of Rs.10,000/- in default to

suffer simple imprisonment for a term of three month for the offence

under Section 324 of the Indian Penal Code and further rigorous

imprisonment for a term of seven years with a fine of Rs.20,000/- in

default to suffer simple imprisonment for a term of six months for the

offences under punishable under Section 307 of the Indian Penal Code.

Brief facts leading to the instant appeal is that based on the

complaint of one Sankari Sarkar, Chakdaha Police Station being Chakdah

P.S. Case No. 269 of 2015 dated April 17, 2015 under Sections 326/307

of the Indian Penal Code was registered and investigation took place.

Prosecution case is that on April 17, 2015 the de facto complainant

namely Sankari Sarkar and her sister namely Basanti Mondal went to

Chakdaha Market by train for purchasing gift items and marriage articles

for Basanti Mondal's daughter's marriage and they decided to invite the

appellant and at about 7.30 a.m. they reached to the house of the

appellant and saw that he was cooking. Then the de facto complainant

proposed to cook for the appellant and the appellant agreed on her

proposal. Then the appellant prepared glucose water for the de facto

complainant and Basanti Mondal in two mugs. On request when the said

Basanti Mondal sipped it, she felt bitter taste of the drink. On being asked

the appellant assured that it was a good drink for them and also told that

after drinking it, they would feel better but after consuming such glucose

water the de facto complainant lost her sense in the kitchen. When she

regained her senses, she heard hue and cry and found Basanti's body

lying in a pool of blood and her intestine was gushing out of abdomen and

it was muffled around the neck and the appellant was not found there.

However, the de facto complainant somehow managed to shift Basanti to

the JNM Hospital Kalyani, Nadia with the assistance of the local people.

After conclusion of the investigation the Investigating Officer

submitted charge sheet no. 593 of 2015 dated 14.09.2015 under Sections

326/307 of the Indian Penal Code. After the case was committed to the

Court of sessions, the learned Sessions Judge took cognizance and

transferred the case to the Court of learned Additional Sessions Judge,

Kalyani for trial and disposal. The trial started with the framing of charge

under Sections 326/307 of the Indian Penal Code against the appellant

who abjured the guilty and claimed a Trial. The prosecution examined as

many as nine witnesses and on conclusion of the trial, the learned trial

judge, held the appellant guilt of the offence under Section 324 / 307 of

the Indian Penal Code and accordingly, the appellant was sentenced to

suffer rigorous imprisonment for three years with a fine of Rs.10,000/- in

default to suffer simple imprisonment for a term of three month for the

offence under Section 324 of the Indian Penal Code and further rigorous

imprisonment for a term of seven years with a fine of Rs.20,000/- in

default to suffer simple imprisonment for a term of six months for the

offences punishable under Section 307 of the Indian Penal Code. The trial

Court directed both the sentences to run concurrently.

Being aggrieved by and dissatisfied with the judgment impugned

the appellant preferred this appeal on the contention that the judgment is

against the weight of evidence on record.

Mr. Suman Das, learned counsel appearing on behalf of the

appellant submits that there are glaring discrepancies in the statements

of the prosecution witnesses which would strike at the root of the

prosecution case. It is also pointed out that the testimony of the post

occurrence witnesses reflects that the de facto complainant and the

prosecution witness nos. 1 and 3 are the interested witnesses being the

sister and the husband of the victim. Prosecution Witness nos. 7 & 8 were

declared hostile and all witnesses have deposed falsely with the

embellished version in respect of alleged occurrence. Prosecution witness

2 namely, Basanti Mondal deposed that the de facto complainant was

served with the drink by the husband of Basanti Mondal but she did not

mention the name of the appellant at any point of time. Prosecution

Witness No. 9 being the Investigating Officer had examined the de facto

complainant on 17.04.2015 at about 10.40 AM at JNM Hospital which is

not possible for a human at that point of time. The seizure in respect of

articles has not been properly done by the Investigating Officer and there

is no explanation of the detail of the articles for the FSL and these are the

lacuna in their investigation as per the submission made on behalf of the

appellant. It is also pointed out that the medical evidence adduced in

connection with this case does not justify conviction of the appellant for

the charges under Section 324/307 of the Indian Penal Code. Accordingly

the appellant has submitted that the judgment is bad in law and in fact

and is liable to be set aside.

Now, Mr. Das learned counsel for the appellant adverted to the

report of the Superintendent of Dum Dum Central Correctional Home to

submit that the appellant has nearly served out the sentence for a period

of six years six months and seventeen days as on date. The report reflects

that sentence undergone by the appellant was five years eleven months

twenty two days as on 10.08.2021 and he was also allowed remission

period of 189 days and altogether the appellant has served out sentence

for six years six month and seventeen days out of seven years of rigorous

imprisonment. As regards discrepancy, when the judgment is confronted

with discrepancies in evidence on record, it does not necessarily demolish

testimony. In my view minor discrepancies do not shake the prosecution

case inasmuch as the statement of the victim lady, her deposition and the

medical evidence, medical report read together convince the judicial mind

to hold that the prosecution has been able to substantiate the charge

under Section 307 of the Indian Penal Code.

The judgment impugned reflects that the appellant was convicted

for the charges under Section 324 and under Section 307 of the Indian

Penal Code.

In my considered opinion since the punishment has been awarded

in respect of the major charge under Section 307 of the Indian Penal

Code, there is, no necessity for inflicting the punishment separately for

the charge under Section 324 of the Indian Penal Code because both the

sentences under Section 324 and 307 I.P.C. were directed by learned

Court to run concurrently.

In the context of the above, this Court finds no ground to interfere

with the judgment of conviction, however, as regards sentence, since the

appellant has been punished with the imprisonment for 7 years and to

pay fine of Rs.20,000/- for the major charge under Section 307 I.P.C., the

separate sentence under Section 324 I.P.C. is not required. Consequently,

the appellant would suffer imprisonment for seven years and to pay fine of

Rs.20,000/- in default to further simple imprisonment for six months

which would suffice the justice.

With the above modification, the appeal being CRA 717 of 2018 is

disposed with a direction upon the learned Trial Court to remit the entire

fine to the victim lady if realized.

Send copy of this order to the Superintendent of the Dum Dum

Central Correctional Home for his information and doing the needful.

Let the Lower Court Records together with a copy of this judgment

be sent down to the learned Trial Court for necessary information and

necessary note in the Sessions Trial Register and for doing the needful.

(Shivakant Prasad, J.)

SB, A.R.(Court)