Mamon Sk. @ Mondal vs State Of West Bengal
2021 Latest Caselaw 5811 Cal

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

Present:

The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Bivas Pattanayak

C.R.A. 665 of 2016 CRAN 1 of 2019 (Old CRAN No. 4261 of 2019)

Mamon Sk. @ Mondal

-Vs-

State of West Bengal

For the Appellant : Mrs. Nasra Ali Rahman, Adv.

Mr. Fazlur Rahman, Adv.

    For the State :                Mr. Swapan Banerjee, Adv.
                                   Mr. Suman De, Adv.



    Heard on :                     24.11.2021


    Judgment on :                  24.11.2021



    Joymalya Bagchi, J. :-

The appeal is directed against the judgment and order dated

11th August, 2016/17th August, 2016 passed by the learned Additional

Sessions Judge, 3rd Court, Krishnanagar, Nadia in Sessions Case No.

60(12) 15 convicting the appellant for commission of offence

punishable under Section 302 of the Indian Penal Code and Section 14

of the Foreigners Act and sentencing him to suffer rigorous

imprisonment for life and to pay fine of Rs.10,000/-, in default, to

suffer further imprisonment for six months more for the offence

punishable under Section 302 IPC and to suffer rigorous imprisonment

for five years and to pay fine of Rs.2,000/, in default, to suffer further

imprisonment for two months more for the offence punishable under

Section 14 of the Foreigners Act; both the sentences to run

concurrently.

The instant case was registered on basis of a written

complaint lodged by one Sahajamal Mondal alleging over the issue of

clearing of water closing the entrance of the house of the deceased

Samiul Mondal, an altercation arose on 25th July, 2015 at midnight

between the deceased and the appellant. In the course of altercation,

the appellant hit the deceased on the head with a crowbar. The

deceased was initially shifted to Chapra Primary Health Centre and

thereafter to District Hospital, Nadia and he finally expired at NRS

Hospital at Calcutta on 29th July, 2015. While the deceased was

gasping for his life at NRS Hospital at Calcutta, a further complaint

was lodged by Marjina Bibi (PW4) alleging that the altercation had

taken place not only with the appellant but also one Babu Mondal,

Salam Mondal, Kuljan Mondal and Tanuja Mondal. She further alleged

that Babu Mondal had brought the crowbar in his hand and the

appellant had suddenly snatched the crowbar and dealt blow on the

head of her husband.

In conclusion of investigation, however, charge-sheet was filed

against the appellant alone and upon commitment to the court of

sessions, the case was transferred to the Court of the learned

Additional Sessions Judge, 3rd Court, Krishnanagar, Nadia who framed

charges under Section 302 IPC and under Section 14 of the Foreigners

Act against the appellant. The appellant pleaded not guilty and claimed

to be tried. In the course of trial, prosecution examined 14 witnesses

and exhibited a number of documents. In conclusion of trial, the trial

Judge by the impugned judgment and order dated 11th August,

2016/17th August, 2016 convicted and sentenced the appellant, as

aforesaid.

Learned counsel appearing for the appellant submits that the

prosecution case is inconsistent and unreliable. While in the initial

report lodged by PW1, appellant is said to be the sole miscreant,

subsequent report of PW4 to police as well as the depositions of PW4

and PW6 show that other persons had also participated in the assault

of the deceased. The said persons have not been arrayed as accused in

the present case. It is further submitted that the appellant did not

have any prior enmity with the deceased and the incident occurred in

the course of a sudden altercation. The deceased was alive for about

four days. Hence, the conviction under Section 302 of the Indian Penal

Code is wholly unjustified. He, however, did not challenge the

conviction under Section 14 of the Foreigners Act.

Learned counsel appearing for the State submits that the

appellant was the principal assailant and had hit the deceased with a

spade on the head. Ocular version of PW4 and PW6 is supported by

the medical evidence of PW7, PW8 and PW10. Hence, the prosecution

case is proved beyond doubt.

PW4 and PW6 are the wife and son respectively of the

deceased. They are also the eyewitnesses.

PW4, Marjina Bibi deposed on the fateful night rain water had

accumulated in their house. There was a passage for exit of rain water

between their house and the house of Salam. Her husband, Salam and

his son Babu were clearing the accumulated rain water through the

passage. At that time, Salam, Babu and the appellant restrained the

flow of water. Her husband along with herself and her son, Rabiul

removed the obstruction on the road and there was an altercation

between her husband on one side and Babu and Salam on the other

side. Wife of Babu namely, Tanuja called Maman Seikh who came to

the spot. Maman came to the spot with a spade and assaulted on the

head of her husband who fell down in the water. She called her vasur

Sahajamal Mondal (PW1). They took the victim to Chapra Primary

Health Centre, thereafter to Shaktigarh Hospital, Krishnanagar and on

the next day to NRS Hospital where her husband expired. She was

unhappy why name of Babu and Salam were omitted from the charge-

sheet. She also sent a letter to I.O., Chapra P.S. where she proved the

Exhibit 1. Maman Seikh is a Bangladeshi national and had married

daughter of Salam.

PW6, Rabiul Mondal corroborated the evidence of her mother.

He deposed that the incident occurred over clearing of rain water

between his father on the one hand and one Babu and Salam on the

other hand. On being summoned by the wife of Babu, the appellant

had come to the spot, Babu and Salam caught hold of his father and

the appellant assaulted with a spade on his head. Father died after

two days in the hospital.

PW1, Sahajamal Mondal is a post occurrence witness. He

came to the spot on being summoned by the wife and son of the

deceased. He took the deceased to the hospital. He lodged the First

Information Report which was scribed by PW14.

PW2, Parvina Bibi and PW5, Nuhunabi Mondal are neighbours

who are also post occurrence witnesses. They were informed of the

incident by PW4.

PW7 treated the victim at Chapra B.P.C.H. He found one

incised wound in the middle of scalp measuring about 3 inches x 1

inch with touching bones and deep cut injury, which is grievous in

nature. He referred the patient to the Nadia District Hospital. P.W.8

deposed that the condition of the patient was very grave and he

referred him to the N.R.S. Hospital, Calcutta.

PW10, Dr. Anindya Kr. Goswami is the autopsy surgeon who

proved the post mortem report (Exhibit 6) and opined death was due to

the effects of the injuries mentioned in the report and ante mortem in

nature.

PW13, SI Laltu Ghosh is the investigating officer of the case.

During investigation, he seized one spade under seizure list which was

witnessed by P.W.9.

On an analysis of the evidence on record, particularly, that of

P.W.4 and P.W.6, I note initially an altercation had commenced

between the deceased on the one hand and Babu and Salam on the

other hand over clearing of rain water through a passage. While Babu

and Salam set upon an obstruction in the passage hindering such

clearance, the deceased forcibly removed obstruction. In the course of

the altercation, Tanuja, wife of Babu called for the appellant who is the

son-in-law of Babu. The appellant came to the spot and hit the victim

on the head with a spade.

Victim was moved to Chapra B.P.C.H., thereafter to District

Hospital, Nadia and finally expired on 29.7.2015 at N.R.S. Hospital.

It is argued that the victim had been assaulted conjointly by

the appellant as well as others, namely, Babu and Salam, P.W. 4 in the

subsequent complaint (Exhibit 1) had implicated the said miscreants.

However, they have not been arrayed as accused in the prosecution.

Even though it is true that P.W.4 and P.W.6 have deposed that initial

altercation took place between the deceased on the one hand and Babu

and Salam on the other, the fatal blow on the head of the deceased had

been struck by the appellant with a spade. This fact has not only been

consistently stated by the P.W.4 and P.W.6 in their respective

depositions but also finds place in her complaint letter dated

15.10.2015 being Exhibit 1.

Hence, I am of the opinion non-arraignment of other persons

in the present case did not prejudice the appellant, who is the

principal assailant.

Moreover, the ocular versions of P.W.4 and P.W.6 are

corroborated by the medical evidence of P.W.s 7, 8 and 10. All the

medical witnesses unequivocally have spoken of incised wound on the

middle of the scalp of the deceased which resulted in his death.

In view of the aforesaid evidence on record, I have no doubt in

my mind that the death of the deceased was caused due to the blow

dealt by the appellant with the spade on his head.

Finally, it has been argued that the conviction may be altered

from one under Section 302 IPC to Section 304 (1) of the Indian Penal

Code.

In support of his contention, learned counsel argued that the

incident occurred in the course of altercation and the appellant did not

have any intention to murder.

On the other hand learned counsel for the State submit that

the appellant dealt a severe blow with a spade on the head of the

victim, hence, the conviction ought not to be altered.

The evidence on record shows that the appellant did not have

any prior enmity with the deceased. He was even not present at the

spot at the beginning of the altercation. He was summoned later by

Tanuja, wife of Babu. Although P.W. 4 claimed that the appellant

came armed with the spade but from her letter Exhibit 1, it appears

that the appellant had come to the spot unarmed and in the course of

altercation in a fit of passion had taken the spade from the hand of

Salam, who was present at the spot, and hit the deceased.

In view of the aforesaid facts, I am of the opinion that the

appellant did not have any intention to commit the murder of the

deceased and the incident occurred on the spur of the moment in the

course of a sudden altercation. It is unclear whether the appellant had

come to the spot armed with the spade. The appellant also had not

acted in a cruel or unusual manner. Deceased was alive for about four

days.

Under such circumstances, I am inclined to hold that the

instant case falls within the exception 4 of Section 300 of the Indian

Penal Code. Hence, the conviction of the appellant is altered from

Section 302 to one under Section 304 Part I of the Indian Penal Code.

Sentence of the appellant is accordingly converted from life

imprisonment to rigorous imprisonment for ten years along with a fine

of Rs.10,000/-, in default, to suffer further imprisonment for six

months more for the offence under Section 304 of the Indian Penal

Code. As evidence on record shows that the appellant is a Bangadeshi

national and the appellant also does not challenge such finding, his

conviction and sentence under Section 14 of the Foreigners Act is

upheld.

The appeal is allowed to the aforesaid extent.

In view of disposal of the appeal, the connected application

being CRAN 1 of 2019 (Old CRAN No. 4261 of 2019) also stands

disposed of.

Period of detention, if any, undergone by the appellant during

investigation, enquiry and trial shall be set off against the substantive

sentence imposed upon him in terms of Section 428 of the Code of

Criminal Procedure.

Lower court records along with a copy of this judgment be sent

down at once to the learned trial court for necessary action.

Photostat certified copy of this order, if applied for, be given to

the parties on priority basis on compliance of all formalities.

I agree.

(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)

akd/bdas/PA