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IN THE HIGH COURT AT CALCUTTA
SURYYA KUMAR TIWARI & DIBYENDU BHUSAN DUTTA, JJ.
Bablu Mondal & another
Versus
State of West Bengal
Criminal Appeal No. 176 of 1990
Decided on : 13.2.1998
CRIMINAL APPEAL - Murder - Conviction under Section 302 read with Section 149 IPC - Conviction of Appellant Bablu Mondal under Section 302 read with Section 149 IPC modified to Section 302 IPC simpliciter - Conviction and sentence of Appellant Tufani Sarkar under Sections 302/149, 147 and 120B IPC set aside - Appeal allowed.
Fact of the Case:
Appellant Bablu Mondal and Appellant Tufani Sarkar were convicted and sentenced for the murder of Nani Mondal. The prosecution alleged that Appellant Bablu Mondal, along with 20-25 associates, attacked Nani Mondal with a dao, causing multiple injuries that resulted in his death. Appellant Tufani Sarkar was accused of being a part of the unlawful assembly and conspiring to murder Nani Mondal.
Finding of the Court:
The Trial Court found Appellant Bablu Mondal guilty of murder under Section 302 read with Section 149 IPC, Appellant Tufani Sarkar guilty of murder under Section 302 read with Section 149 IPC and also under Sections 147 and 120B IPC, and convicted and sentenced each of them to life imprisonment. The remaining 14 accused persons were acquitted.
Issues: 1. Whether the conviction of the appellants under Section 302 read with Section 149 IPC can be sustained in light of the acquittal of 14 co-accused? 2. Whether the evidence is sufficient to establish the individual liability of Appellant Bablu Mondal for the murder of Nani Mondal?
Ratio Decidendi: 1. The mere fact that only 16 persons, including the two appellants, were charged for the offence under Section 149 IPC and the fact that out of those 16, 14 have already been acquitted of that offence, does not ipso facto warrant a conclusion that the conviction of the appellants for that offence is not sustainable in law. Such conviction would be illegal only if the prosecution has not proved the involvement of other persons. 2. The evidence of PW 1, the only eye witness, is sufficient to warrant a conviction of Appellant Bablu Mondal under Section 302 IPC simpliciter. The omission in PW 1's statement before the police regarding the precise time of the attack is not a material contradiction. The FIR (Ext. 5) cannot be used for corroboration as it was lodged after the investigation had commenced, but it can be used for contradiction under Section 145 of the Indian Evidence Act.
Final Decision: The appeal is allowed fully so far as it is directed against the conviction and sentence of Appellant Tufani Sarkar and against those of Appellant Bablu Mondal under Sections 148 and 120B, which are hereby set aside. Appellant Tufani Sarkar is acquitted of all the offences and be set at liberty if he is not wanted in any other case. Appellant Bablu Mondal is acquitted of the offences punishable under Sections 148 and 120B IPC. The conviction and sentence of Appellant Bablu Mondal under Section 302 read with Section 149 is hereby modified to one for life imprisonment under Section 302 IPC simpliciter.
DIBYENDU BHUSAN DUTTA, J.
1. This appeal is directed against the judgment of conviction and sentence passed on 6.3.90 by the ld. Additional Sessions Judge, First Court, Jalpaiguri in Sessions Trial No. 19 of 1988.
2. The prosecution story may be stated as follows:-
On 5.9.84 corresponding to 19th of Bhadra 1391 B.S., one Nani Mondal of Bamantari village along with three of his co-villagers namely Premchand Sarkar (PW 1), Dilip Sarkar and Gouranga Mondal went to Daukimari hut for the purpose of selling his jute. After the sale of the jute, Nani Mondal paid Rs. 80/- to one Tufani Sarkar (appellant no.2) in satisfaction of the previous loan. On receipt of the money, Tufani Sarkar left the hut at about 3 P.M. Nani Mondal and his three companions left the hut at about 5:30 P.M. for home. Daukimari hut is about one and a half mile from Bamantari that leads to the houses of Nani Mondal and his three companions passes by the side of the village well lying about 10 cubits to the East of that road. The primary school of the village lies to the north of that well at a distance of about a bigha and the pan-biri shop of Mantu Mondal (PW 16) lies opposite to the village well five cubits to the West of that Kachha Road. After reaching the primary school, while Nani Mondal and his companions were approaching the well, Dilip Sarkar and Gouranga Mondal were ahead of Nani Mondal at a distance of about 19-20 cubits and PW 1 was behind Nani Mondal at a distance of about 5 cubits. As soon as Nani Mondal reached near the well, Bablu Mondal (appellant no.1) who was standing near the well attacked Nani with a dao. About 20-25 persons including the appellant Tufani were accompanying Bablu Mondal at that time. The appellant Bablu inflicted multiple blows upon Nani. PW 1 cried for help out of fear when Nani was attacked and attracted by his cries, about 150 persons of the village Bamantari assembled there and found Nani dead. PW 1 and 15 co-villagers remained as guard near the dead body of Nani. After some time Bablu Mondal again came to the place of occurrence along with 24-25 persons to take away the dead body of Nani. PW 1 and other persons remaining at the spot to guard the dead body shouted for help whereupon Bablu and his associates fled away. Attracted by their cries, about 50 villagers again came to that place. In the meantime, it started drizzling and the dead body of Nani Mondal was removed to his house. The widow of Nani's elder brother was sent to Daukimari colony to give information about the occurrence to Meghlal Sarkar (PW 7). Meghlal's brother, Bhasan Sarkar (PW 2) came to Dhupguri P.S. along with one Paresh Biswas and gave the information about the murder of Nani Mondal. The information was diariesed by the then O.C. Ankesh Chatterjee under G.D. Entry No.97 dated 6.4.84 (Ext. 6) at about 05 hrs and on being directed by the O.C., S.I. Rabindranath Seal (PW 18) rushed to Bamantari village with force on that very night at about 1 A.M. He visited the place of occurrence and did not find the dead body of Nani Mondal which was already removed to his house. He came to the house of Nani Mondal, asked PW 1 to go to Dhupguri P.S. and give his version of the occurrence. Accordingly, PW 1 along with Dilip Sarkar, Gouranga Mondal and Premchand Mondal (PW 9) came to P.S. and gave his statement which was recorded by the then O.C. Ankesh Chatterjee and was treated as FIR (Ext.5). Its corresponding G.D. Entry No. is 103 dated 6.9.84 (Ext.9). On the basis of this FIR, Dhupguri P.S. Case No.3 dated 6.9.84 was registered. The O.C. entrusted the investigation of the case to PW 18 and sent a copy of the FIR (Ext.5) along with the necessary endorsement to PW 18 when he was at the place of occurrence. PW 18 held the inquest over the dead body of Nani Mondal in the house of Nani and sent the dead body through constable, Balun Ch. Roy (PW 12) for post mortem examination, by Dr. Biswapati Satpathi (PW 11). During investigation, PW 18 prepared a sketch map of
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