Calcutta High Court (Appellete Side)
Pradip Kumar Mondal @ Kala vs State Of West Bengal on 31 August, 2023
Sl. No. 54
sdas
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Gaurang Kanth
C.R.A. 636 of 2019
Pradip Kumar Mondal @ Kala
-Vs-
State of West Bengal
For the Appellant : Mr. Navanil De (Legal Aid)
Ms. Monami Mukherjee
For the State : Mr. Joydeep Roy
Ms. Sujata Das
Heard on : 31.08.2023
Judgment on: 31.08.2023
Joymalya Bagchi, J.:-
1.
The appellant has assailed the judgment and order dated
23.09.2019 and 24.09.2019 passed by the learned Additional Sessions
Judge, Fast Track, 2nd Court, Purba Bardhaman, in connection with
Sessions Case No. 25 of 2018 corresponding to Sessions Trial Case No.
02(02) of 2018 convicting the appellant for commission of offence
punishable under Section 304(1) of the Indian Penal Code and sentencing
him to suffer rigorous imprisonment for ten years and to pay a fine of
Rs.3000/- only, in default to suffer rigorous imprisonment for one year
more on his conviction to the charge under Section 304(1) of the Indian
Penal Code.
Prosecution case:-
2. The prosecution case as alleged against the appellant is as follows:-
3. Pradip Mondal, the appellant herein, had illicit relationship with a
married lady. Gadai Giri, the deceased protested. On 14.09.2017 there was
an altercation between Pradip Mondal and Gadai Giri over this issue. On
15.09.2017 between 10-11 P.M. Jharna Giri, wife of Gadai Giri, heard loud
noises from outside. From the room she could make out that there was an
altercation between Pradip Mondal and her husband. Both were
intoxicated. Pradip started assaulting her husband. When she and her
daughter ran to the spot Pradip fled away. She saw her husband lying on
the ground. She brought her husband to the house. The condition of her
husband deteriorated and she took her to Memari Hospital for treatment
where he was declared dead.
4. She lodged written complaint being Memari Police Station Case No.
464 of 2017 under Section 304 of the Indian Penal Code. In the course of
investigation appellant was arrested. A torch was recovered from his
residence.
5. Charge-sheet was filed and charge was framed under Section 302 of
the Indian Penal Code. In the course of trial prosecution examined 13
witnesses and exhibited a number of documents to prove its case.
6. In conclusion of trial learned Trial Judge by the impugned
judgment and order convicted and sentenced the appellant, as aforesaid.
Evidence on record:-
7. PW 1 (Jharna Giri) is the de facto complainant and the wife of the
deceased. She claimed to be an eye-witness. PWs 2 and 3 are her minor
daughter and son respectively. They accompanied their mother, PW 1 to
the spot and also claimed to have seen the incident.
8. PW 6, Rajesh Giri, is another minor son of PW 1. He heard the
incident from her mother and others.
9. PW 7, (Sayed Bulbul) is the scribe to the FIR.
10. PWs 8, 10 and 12, Biju Murmu, Somerandranath Mondal and
Bimal Besra respectively are the neighbours. They came to the spot after
the occurrence.
11. PWs. 4 and 5, Somen Rakshit and Tarimemdu Mondal respectively
are the witnesses to the recovery of torch from the residence of the
appellant.
12. PW 11 (Dr. Aniruddha Das) is the post-mortem doctor and PW 13
(Uttal Samanta) is the investigating officer.
Arguments at the Bar:-
13. Mr. Dey, learned Counsel for the appellant argues PWs. 1, 2 and 3
who claim to be the eye-witnesses were not at the spot. PW 1 admitted she
was at her residence. It was at a five minutes' walking distance from the
place of occurrence. PW 2 also stated the distance of their house from the
village Dihipalashan is about 500 meters and it took 15 to 20 minutes to
reach the said village. Presence of the said witnesses at the place of
occurrence is highly doubtful. In the absence of support from the
eyewitnesses, mere recovery of torch from the residence of the appellant
would not establish his culpability. Hence, the appeal is liable to be
dismissed.
14. Per contra, Ms. Das appearing for the State submits PWs 1, 2 and 3
are the most natural witnesses. Hearing hue and cry, PW 1 and her two
minor children PWs. 2 and 3 rushed to the spot and found the victim lying
in an injured condition and the appellant was standing there with a torch
and fled away. The said torch was also recovered from the residence of the
appellant. Conviction was rightly recorded and the appeal is liable to be
dismissed.
Are PWs 1, 2 and 3 reliable:-
15. In the FIR PW 1 claimed on 15.09.2017 around 10.00 to 11.00 PM
while she was inside the house, she heard a quarrel between her husband
Gadai and the appellant. Appellant started assaulting her husband. When
she reached the spot appellant ran away. During deposition the said
witness altered her stance. She claimed the place of occurrence was at a
little distance away from her house. Hearing hue and cry she went to the
spot and found her husband lying on the ground with injuries. Appellant
was standing there with a torch and fled away.
16. In cross examination she stated they were residing at their house at
Dihipalashan. It takes about five minutes to reach the farmhouse of
Somerandranath Mondal i.e. the place of occurrence. It is improbable if not
impossible that witness heard hue and cry from a place which is at a five
minuets' walking distance from her house. The version of PW 1 is clearly
improbable and does not inspire confidence.
17. It has come out in FIR that there was prior enmity between the
appellant and the deceased. On 14.09.2017 there was an altercation
between them. Owing to such prior enmity it is likely PW 1 had implicated
the appellant in the murder out of suspicion though she had not witnessed
the incident herself.
18. Version of PWs. 2 and 3 suffer from similar infirmity. PW 2 is the
minor daughter and PW 3 minor son of the couple. They deposed on
similar lines as PW 1; they claimed hearing hue and cry PW 1 came out
and saw the appellant hitting the victim with a torch. They had also
accompanied PW 1. As the residence of the said witnesses is at a
considerable distance from the place of occurrence it is most unlikely that
they could have heard hue and cry and come to the spot and witnessed the
incident. For this reason, I am unable to accept the version of PWs 1, 2
and 3 that hearing hue and cry they came to the spot and had witnessed
the murder or had seen the appellant standing there with a torch light.
Does recovery of torch implicate the appellant:-
19. Substratum of the prosecution case primarily lies on the shoulder
of the aforesaid eye-witnesses. If they are disbelieved the only
circumstance which the prosecution would rely is the recovery of a torch
from the appellant. It is common knowledge that torches are available in
every household. Recovery of a torch from the house of the appellant by
itself would not irresistibly lead to the inference that the said torch was
used as a weapon of offence. The seized article had not been sent for
forensic analysis and no report showing presence of blood on the torch is
also produced.
Conclusion:-
20. For the aforesaid reasons, I am of the opinion eye-witnesses PWs 1,
2 and 3 do not inspire confidence and the prosecution case has not been
proved beyond doubt. Appellant is accordingly acquitted. Appeal is
allowed.
21. Appellant shall be forthwith released from custody, if not wanted in
any other case, upon execution of a bond to the satisfaction of the learned
trial court which shall remain in force for a period of six months in terms
of Section 437A of the Code of Criminal Procedure.
22. Copy of the judgment along with Lower Court Records be sent down
to the trial court at once for necessary compliance.
23. Urgent Photostat Certified copy of this order, if applied for, be
supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
