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2016 Supreme(Cal) 961
In the High Court at Calcutta
Nadira Patherya And Asha Arora, JJ.
Bonomali Mondal (died during the pendency of the appeal) and Ors. - Appellants
Versus
The State of West Bengal - Respondent
C.R.A 190 of 2006
Decided On : 30-9-2015
For the Appellants : Mr. Milon Mukherjee, Mr. Sandipon Ganguly, Mr. Subhashis Dasgupta, Mr. Dipanjan Guha
For the Respondent: Mr. Manjit Singh, P.P, Mr. Ranobir Roy Chowdhury, Mr. Pawan Kumar Gupta
For the de facto complainant : Mr. M. Mondal, Mr. Pinku Sarkar, Mr. Nasim Ahmed
Headnote:
CRIMINAL APPEAL - Conviction for the offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code - Assailed - Whether the appellant/accused was present at the place and time of occurrence - Whether the appellant/accused shared the common intention with the main accused/assailant of the deceased - Whether the ocular evidence of the witnesses is convincing, credible and trustworthy - Whether the medical evidence corroborates the ocular evidence - Whether the defence of alibi taken by the appellant/accused is proved.
Fact of the Case:
The incident in question occurred on 12/3/91 at about 6.30 a.m over a dispute regarding a plum tree situated on the ‘ejmali’ property. The deceased victim was taken to Berhampore New General Hospital for treatment where he succumbed to the injuries on the same day at about 12.00 noon. The FIR was lodged at Berhampore P.S on the same day. Investigation culminated in the submission of the charge-sheet under Section 304/34 of the IPC against the three accused persons/appellants.
Finding of the Court:
The Court held that the ocular evidence of the witnesses is convincing, credible and trustworthy. The medical evidence corroborates the ocular evidence. The defence of alibi taken by the appellant/accused is not proved. The appellant/accused shared the common intention with the main accused/assailant of the deceased.
Issues: 1. Whether the time, place and manner in which the incident in question occurred is doubtful? 2. Whether the evidence of the witnesses is reliable and trustworthy? 3. Whether the appellants/accused shared the common intention with the main accused/assailant of the deceased? 4. Whether the defence of alibi taken by the appellant/accused is proved?
Ratio Decidendi: 1. The Court held that the time, place and manner in which the incident in question occurred is not doubtful. The charge framed by the Trial Court does not mention the time and the actual place of occurrence of the alleged incident but no prejudice has been proved to have been caused to the appellants. 2. The Court held that the evidence of the witnesses is reliable and trustworthy. The evidence of the post mortem doctor who deposed in Court after a lapse of 10/11 years from the date of incident cannot prevail over the post mortem report dated 12/4/91 and that the presence of undigested food in the stomach of deceased cannot conclusively determine the time of incident. 3. The Court held that the appellants/accused shared the common intention with the main accused/assailant of the deceased. The evidence on record convincingly proves that the other two accused shared the common intention with Biswajit Mondal by dragging the victim forcibly to the courtyard of their house to facilitate the assault upon him by Biswajit Mondal. 4. The Court held that the defence of alibi taken by the appellant/accused is not proved. The accused/appellant Biswajit Mondal failed to establish his plea of alibi.
Final Decision: The appeal is dismissed. The appellants Biswajit Mondal and Tapan Mondal are directed to surrender before the Trial Court within one month from this date to serve out their sentence in default of which the Trial Court shall take appropriate steps in accordance with law for execution of the sentence.
Asha Arora, J.
1. The instant appeal is directed against the judgment and order dated 9th March, 2006 and 10th March, 2006 passed by the Additional Sessions Judge 3rd Court, Murshidabad in Sessions Trial No. 1 of July, 2001 arising out of Sessions Serial No. 81 of 1993 convicting the appellant nos. 1 and 3 for the offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code and the appellant no. 2 for the offence punishable under Section 304 Part II of the Indian Penal Code and sentencing the appellant no. 1 to suffer simple imprisonment for three years for the aforesaid offence while the appellant nos. 2 and 3 have been sentenced to suffer rigorous imprisonment for 10 years each. The appellant no. 2 has also been sentenced to pay a fine of Rs.10,000/- in default to suffer rigorous imprisonment for six months for the offence punishable under Section 304 Part II of the Indian Penal Code while the appellant no. 3 has been sentenced to pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for three months for the offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code (for short referred to as the I.P.C).
2. At this juncture it is significant to mention that during the pendency of the appeal one of the appellants namely, the appellant no. 1 Bonomali Mondal reportedly died. Accordingly, on the basis of his death certificate, the appeal abated as regards the aforesaid appellant Bonomali Mondal.
3. Prosecution case, bereft of unnecessary details is as follows:
On 12/3/91 at 07.45 hrs one Goutam Mondal (P.W 1) son of Uma pada Mondal lodged a written complaint at Berhampur Police Station stating that since long there has been dispute and litigation in respect of property between his father and uncle on one hand and the appellant no. 1 on the other. On 12/3/91 at about 6.30 a.m there arose a dispute over a plum tree which was situated on the ‘ejmali’ property. For making arrangement of a cooking space near the house for the marriage of Sankar Mondal, son of Anil Mondal (P.W 4), there was cutting of a small branch of the plum tree but the accused persons/appellants obstructed and started abusing in filthy language. They also threatened with ‘heso’, ‘lathi’ and ‘sarki’. Pursuant to the dispute everyone proceeded towards the house and the plum tree including the de facto complainant’s father and his two brothers. At that time the three accused persons/appellants took the de facto complainant’s father/deceased victim within their grip. While the appellant nos. 1 and 3 caught hold of the victim and carried him towards the courtyard, appellant no. 2 Biswajit Mondal went to his house and brought a ‘heso’ which was struck in his abdomen in consequence of which the victim Uma pada Mondal was severely injured and the entrails of his abdomen came out. The injured victim was taken to Berhampore New General Hospital for treatment where he succumbed to the injuries on the same day at about 12.00 noon.
4. On the basis of the aforesaid written complaint (Exhibit 1), Berhampore P.S Case No. 70 of 1991 dated 12/3/91 under Section 326/34 of the I.P.C was initiated against the three accused/appellants. Investigation into the case culminated in the submission of the charge-sheet under Section 304/34 of the I.P.C against the three accused persons/appellants.
5. The case being a sessions triable one was committed to the Court of Sessions Judge, Murshidabad wherefrom it was transferred to the Additional Sessions Judge 3rd Court, Murshidabad for trial and disposal.
6. The Trial Court framed charge under Section 304/34 of the I.P.C against the three accused/appellants. Being so arraigned, the accused persons/appellants pleaded not guilty to the indictment and claimed to be tried.
7. During the trial, prosecution examined 15 witnesses namely, P.W.1 Goutam Mondal, who is an ocular witness. The other eye witnesses to the incident are P.W 3 Netai Sarkar, P.W 4 Anil Mondal, P.W 5 Tiloka
