important points
Evidence of close relatives cannot be discarded on wrong assumption that relatives were not independent witnesses.
Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.Challenge in this appeal is to the judgment rendered by a Division Bench of the Calcutta High Court upholding the conviction for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentence of imprisonment of life awarded by learned Additional Sessions Judge, 2nd Court, Malda in Sessions Trial No.51/2001.

3.Background facts in a nutshell are as follows :

“On 13.2.1994 round about 2.30 p.m. a young girl called Bharati Mondal was returning home, carrying a bundle of ‘Khari’ on her head. As the ‘Khari’ struck on the body of the appellant Kulesh Mondal, the accused Naresh Mondal (acquitted by the High Court) and his brother appellant-Kulesh Mondal hurled filthy languages at her. Shocked by such behaviour of the accused, the informant Naren Mondal raised his strong protest. There ensued bickering amongst them. It was followed by hurling of brickbats at the informant. While such things had been going on, one Chakku Mondal (hereinafter referred to as the deceased) was passing along the road. He came to the spot to enquire as to what had been going on there. Finding him there, the accused Naresh Mondal dragged him to the place of occurrence and his brother appellant Kulesh Mondal delivered a fatal blow on his neck with a ‘Hasua’. The injured Chakku Mondal having sustained severe injury on his neck, efforts were made to shift him to the hospital. Unfortunately, the injured succumbed to his injury before his arrival in the hospital. With the informant Naren Mondal reporting the incident with the local P.S. Manikchak P.S. Case No.10/1994 dated 13/02/1994 under Sections 341/323/302/34 IPC was registered against Kulesh Mondal and others. Following the inquest over the dead body, the Investigating officer sent the dead body to the Malda Sadar Hospital for post mortem examination. The investigation proceeded in it usual way with the Investigating officer preparing a sketch map of the lace of occurrence. He also seized blood stained earth, control earth, few pieces of broken tiles and brickbats, some dry woods and prepared seizure list in presence of the witnesses. Subsequently, the blood stained wearing apparels of the victim were also seized. Despite raids being conducted, to apprehend the culprits, the accused persons evaded arrest for a long time. Eventua1ly, they were arrested one after another. The arrest of principal accused Kulesh Mondal could be made only on 18.6.1994. The Investigating Officer, in the meantime, examined the available witnesses. The statement of Bharati Mondal recorded under Section 164 of the Code of Criminal Procedure, 1973 (in short the ‘Cr.P.C.’) was collected. Collection of the post mortem report was also made. On completion of investigation, charge sheet was submitted.

Following the commitment of the case, the learned Additional Sessions Judge framed charges under Sections 3O2/34, 323/34 and 337/34 IPC against the appellant and others. The accused persons having pleaded innocence, the prosecution examined 14 witnesses to bring home the charges. Amongst the notable witnesses were the eyewitnesses of the occurrence, the witnesses of the seizure of the incriminating articles, the doctor conducting the post mortem examination and the officer who investigated the case. The learned Judicial Magistrate recording the statement of Bharati Mondal was also examined as a prosecution witness. Placing strong reliance on the statements of the eyewitnesses and the supportive post mortem report, learned Additional Sessions Judge convicted the appellant Kulesh Mondal and his brother Naresh Mondal for commission of offence punishable under Section 302 read with Section 34 IPC. The trial court found the evidence to be credible and cogent and, therefore, found the two accused persons guilty of offences punishable under Section 302 read with Section 34 IPC. They were sentenced to rigorous imprisonment for life and fine of Rs.5000/- each, in defau