Shibnarayan Mondal @ Ram Mondal vs State Of West Bengal
2022 Latest Caselaw 1714 Cal

Item No. 22




                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. 590 of 2017
                                       With
                      CRAN 1 of 2017(Old CRAN 5047 of 2017)
                                       With
                      CRAN 2 of 2018(Old CRAN 2973 of 2018)

                       Shibnarayan Mondal @ Ram Mondal
                                     -Vs-
                            State of West Bengal


For the Appellant          :    Ms. Manasi Roy, Adv.

For the State              :    Mr. Partha Pratim Das, Adv.
                                Ms. Amita Gaur, Adv.

Heard on                   :    1st April, 2022

Judgment on                :    1st April, 2022


Joymalya Bagchi, J. :-

         Nobody appears for the appellant. Ms. Roy, empanelled with High

Court Legal Services Authority is requested to represent the appellant.

Secretary, High Court Legal Services Authority shall regularize her

service.

         Appellant has assailed judgment and order dated 30th August,

2017 and 31st August, 2017 passed by learned Additional Sessions
                                        2




Judge, Kalna, Burdwan, in Sessions Trial No. 08/2013 arising out of

Sessions Case No. 63/12 convicting the appellant for commission of

offence punishable under Section 304 of the Indian Penal Code and

sentencing him to suffer imprisonment for life and to pay a fine of Rs.

5,000/-, in default, to suffer simple imprisonment for six months more.

        Prosecution case as alleged against the appellant is to the effect

that   on   01.10.2011 at   9   p.m.       the   deceased (Basudeb   Santra)

accompanied the appellant to his farmhouse to attend a feast at

Dharmadanga. In the course of the feast, an altercation took place

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

appellant hit the deceased with a "tangi" on the neck and back.

Thereafter, he threatened others and fled away from the spot. Victim was

taken to Kalna Sub-Divisional Hospital and thereafter to Burdwan

Medical College and Hospital for better treatment. Written complaint was

lodged by Sulata Santra (P.W. 1) against the appellant at police station

resulting in registration of Kalna P.S. Case No. 239 of 2011 dated

2.10.2011

under Sections 341/326 of the Indian Penal Code. Victim

subsequently died on 05.10.2011. Inquest and post-mortem were held

over the body of the victim. Appellant was arrested and charge-sheet

was filed against him. Charges were framed under Sections 341/304 of

the Indian Penal Code.

In course of trial, prosecution examined 11 witnesses and

exhibited a number of documents. Defence of the appellant was one of

innocence and false implication. In the course of his examination under

Section 313 Cr.P.C. appellant contended he had objected to rowdy and

drunken behavior of some persons at Dharmadanga. As a result, he was

assaulted and taken to hospital. Thereafter, he was arrested. He

however did not examine any witness to probabilise such defence.

In conclusion of trial, the trial judge by the impugned judgment

and order dated 30th August, 2017 and 31st August, 2017 convicted and

sentenced the appellant, as aforesaid.

Ms. Roy, learned advocate appearing for the appellant, argues

that the place of occurrence has not been proved. Neither any wearing

apparel of the deceased nor bloodstained earth were seized. Seizure of

weapon of offence, that is, "tangi" is not supported by independent

witnesses. No statement of the accused leading to discovery under

Section 27 of the Evidence Act has also been exhibited. Evidence of so-

called eye-witnesses P.Ws. 2 to 5 suffer from various contradictions and

inconsistencies. Hence, the appellant is entitled to an order of acquittal.

Without prejudice to the aforesaid submissions, it is contended sentence

imposed on the appellant is too severe.

Mr. Partha Pratim Das with Ms. Amita Gaur, learned Counsels

appearing for the State relies on the evidence of the eye witnesses P.Ws.

2 to 5 and submit the prosecution case has been proved beyond doubt.

Medical evidence on record i.e. injury report, Exhibit 3, bed head tickets

Exhibits 11 and 12 and post mortem report, Exhibit 7 corroborate the

ocular versions of the eye witnesses. On the showing of the appellant,

tangi was recovered. Hence, the appeal may be dismissed.

P.Ws. 2 to 5 are the eye witnesses to the incident. P.Ws. 2 and 5

had accompanied the appellant and deceased Basudeb Santra to the

picnic. P.W. 2, Meghnath Mondal stated a feast was held in the mango

orchard of the appellant. At the feast, an altercation ensued between the

appellant and the deceased. Appellant physically assaulted the deceased

and thereafter brought a tangi and chopped him on his right shoulder

and back. Out of fear, P.W. 2 did not resist. Basudeb was taken to Kalna

hospital.

P.W. 5, Haradhan Mondal @ Chal was also present at the picnic.

He corroborated the evidence of P.W. 2. He further stated hearing hue

and cry a next door neighbour viz., Ananta Mondal (P.W. 4) arrived at

the spot.

P.W. 3, Biswajit Mondal and P.W. 4, Ananta Mondal are

neighbouring witnesses. P.W. 3 deposed at 9/9.15 p.m. hearing hue and

cry he came to the spot and saw the appellant kicking at the abdomen of

the victim. Thereafter, he chopped on the back of the victim with a tangi.

When they tried to resist, the appellant ran after Ananta Mondal. P.W. 3

scribed the first information report lodged by the wife of the deceased,

P.W. 1.

In cross-examination, the witness stated he cannot say whether

the appellant sustained injuries or not.

P.W. 4, Ananta Mondal deposed around 9.30 p.m. he heard hue

and cry from the orchard of the appellant. He rushed to the spot and

saw the appellant chopping Basudeb with tangi. The appellant then

chased him with a tangi. He put Basudeb in a rickshaw van and took

him to hospital. On the way, Basudeb stated there was a quarrel when

the appellant had assaulted him with a tangi which he had brought from

his house.

P.W. 1, Sulata Santra is the wife of the deceased. Though she

claimed to be an eye witness, on reading her statement in the first

information report, it appears that she is a post occurrence witness.

Immediately after the incident, she had lodged complaint.

P.W. 10, Debasis Sarkar is the post mortem doctor who found

sharp cutting injuries on the neck as well as right infra scapular area of

the deceased in addition to abrasions and scars. He opined death was

due to the effect of the injuries which were ante mortem in nature with a

history of assault by tangi. He proved the post mortem report, Exhibit 7.

P.W.11, Prabir Kumar Sarkar (Investigating Officer) collected the

injury report of the deceased, Exhibit 3 as well as the bed head tickets of

Kalna S. D. Hospital and Burdwan Hospital, Exhibits 11 and 12.

From the aforesaid evidence on record, it appears deceased

Basudeb had accompanied the appellant to attend a feast in a mango

orchard belonging to the appellant. P.Ws. 2 and 5 were present during

the feast. A quarrel ensued between them. In course of the quarrel,

appellant assaulted the deceased and struck him with tangi blows on

the neck and back. As a result, deceased suffered bleeding injuries and

was hospitalized. After four days he succumbed to his injuries. Hearing

hue and cry, neighbours (P.Ws. 3 and 4) also came to the spot and

witnessed the assault upon the deceased.

Ms. Roy submits the evidence of the so-called eye-witnesses

suffer from embellishments and contradictions. None of them tried to

save the deceased. Although the deceased suffered sharp cutting

injuries, neither his wearing apparels nor blood stained earth were

seized and produced in Court.

I have gone through the evidence of the aforesaid eye witnesses.

Gist of the prosecution case with regard to altercation between the

appellant and the deceased in the course of feast and thereafter assault

by the appellant with tangi on the deceased has been consistently stated

by the said eye witnesses. Slight variation in the description of the

incident by these witnesses, in fact, lends credence to their versions. It

is common knowledge ability to recollect and reproduce events vary from

person to person. It is absurd to expect a parrot like representation of an

incident by all the witnesses. Presence of the witnesses at the place of

occurrence is proved. Two of them i.e. P.Ws. 2 and 5 attended the picnic

while P.Ws. 3 and 4 are neighbouring witnesses who upon hearing hue

and cry rushed to the spot and saw the incident. Contention on behalf of

the appellant that the witnesses did not try to resist is also unfounded.

The witnesses stated that the appellant had threatened them and in fact

chased P.W. 4 with tangi. Out of fear they were unable to resist. Hence, I

am of the opinion that P.Ws. 2 to 5 were present at the place of

occurrence and saw the incident. They are truthful witnesses and the

prosecution case is proved through them.

Ocular versions of P.Ws. 2 to 5 is corroborated by the injury

report, Exhibit 3 as well as the bed head tickets, Exhibits 11 and 12

seized by the investigating officer. Post mortem doctor (P.W. 10) also

noted incised sharp cutting injury on the neck and the shoulder of the

deceased in addition to abrasions and scars. The medical evidence on

record support the ocular versions of the eye-witnesses, P.Ws.2 to 5.

Ms. Roy contended though victim was alive for about four days,

no dying declaration was recorded. P.W. 4 claimed on the way to

hospital, victim stated in the course of quarrel appellant had gone back

to his house, brought a tangi and assaulted him. It is contended other

witnesses have not corroborated the oral dying declaration.

I have considered the injury report as well as the bed head

tickets exhibited in the instant case. Bed head ticket shows noting of

history of assault by tangi as stated by the patient. This endorsement

supports the version of P.W. 4 that the victim was conscious and in a

position to speak.

Ms. Roy also contended the appellant had suffered injuries and

was treated at Kalna Hospital. The arrest memo (Exhibit 10) shows

injuries on the body of the appellant. Prosecution has not explained

such injuries casting doubt with regard to the unfolding of the

prosecution case. It is true the arrest-cum-inspection memo (Exhibit 10)

shows swelling and other injuries over the body of the appellant. Injury-

slip at Kalna S. D. Hospital also shows appellant was treated in the

hospital along with the deceased. The aforesaid evidence gives an

impression appellant had also received injuries. In course of his

examination under Section 313 of the Code of Criminal Procedure

appellant contended he had protested against rowdy drunken behaviour

in the locality and was assaulted. He did not lead defence evidence to

probabilise such defence. On the other hand, prosecution witnesses

state there was a quarrel between the appellant and Basudeb. It is

possible in course of quarrel, appellant had also received injuries.

Hence, it is incorrect to state the circumstances coming out from the

evidence of eye-witnesses do not explain the injuries received by the

appellant.

In the light of the aforesaid discussion, I am of the opinion

evidence of the eye witnesses viz., P.Ws. 2 to 5 are cogent, convincing

and supported by medical evidence. In this backdrop, defects in

investigation, that is, failure of the investigating officer to seize wearing

apparels of the deceased or blood stained earth from the place of

occurrence does not erode the truthfulness of the prosecution case.

I have not given much importance to the seizure of the tangi on

the showing of the appellant as such circumstance has not been proved

through independent evidence. Leading statement of the appellant has

also not been exhibited. However, as the prosecution case is squarely

proved through the version of the eye-witnesses and medical evidence on

record, I uphold the conviction of the appellant.

Coming to the issue of sentence, I note maximum sentence of life

imprisonment has been imposed on the appellant. Appellant does not

have any criminal antecedent. Incident occurred in course of a sudden

quarrel between the appellant and the deceased. Appellant also suffered

injuries on his body and the victim died four days after the incident.

Whether the appellant went back to his residence and brought the tangi

is not supported by all the eye witnesses.

Under such circumstances, balancing the aggravating and

mitigating factors of the case, I am inclined to modify the sentence

imposed upon the appellant and I direct that he shall suffer rigorous

imprisonment for ten years and pay fine of Rs. 5,000/-, in default, to

suffer simple imprisonment for six months more.

With the aforesaid modification as to sentence, the appeal is

disposed of.

In view of disposal of appeal, connected applications, if any, are

also disposed of.

Period of detention suffered 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.

Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

I record my appreciation for the able assistance rendered by Mrs.

Manasi Roy, learned Advocate as amicus curiae in disposing of the

appeal.

Photostat certified copy of this judgment, if applied for, shall be

made available to the appellants upon completion of all formalities.

I agree.

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




cm/as/akd/PA (Sohel)