Dipankar Mondal vs The State Of West Bengal

Rajasekhar Mantha, J.:

The subject appeal is directed against judgment and order of conviction dated 7^th October, 2015 and 8^th October, 2015 passed by the learned Additional Sessions Judge, 5^th Court, Barasat, North 24-Parganas in Sessions Trial No. 7/15 arising out of Sessions Case No. 4(12)14. The appellant was convicted under Section 498A of the IPC for 2 years and life imprisonment under Section 302 of the IPC.

The prosecution case in brief is that on 22^nd May, 2014, in the very early hours, the appellant was found by his neighbour Sujan Biswas, PW-3 assaulting his wife in a drunken condition. Upon intervening, Sujan and PW-4 Narayan Roy were abused by the appellant and asked not to interfere in his family affairs. On seeing the victim badly assaulted, PW-3 is told the appellant to take her to the hospital. The appellant took the victim, i.e., his wife to the Habra State General Hospital. She was treated thereat by one Dr. Samir Mondal, who wrote on the injury report that the patient had a history of fall. The report also indicated that there were several injuries on the body of the victim and she was brought dead.

The appellant returned to his house. Upon hearing the cries of a two-month old child of the appellant, the neighbour PW-3 enquired as to why the child was crying and where the victim was. He was informed by the appellant that the victim had died. The appellant tried to flee and was restrained by local residents. PW informed the local P.S. immediately. He thereafter lodged a formal complaint at about 9.25 a.m. the morning with the Habra P.S. which registered FIR being No. 399 dated 22^nd May, 2014 under Sections 498A and 302 of the IPC. The appellant was named as the sole accused. Prior thereto UD case being No. 109 of 2014 was registered on the same day, i.e., 22^nd May, 2014 by PW-10, Tilak Sanyal at the Habra P.S. Against UD case, one PW-9, Mir Alauddin is stated to have conducted the first inquest where PW-3 and PW-4 had signed as witnesses. The police arrived at the P.O. in the morning around 8.00 a.m. and remained thereat till 2.00 p.m. in the afternoon.

The second inquest was conducted on the next day by the local Executive Magistrate at Barrackpore. The inquest was stated to have been conducted at the office of the SDO after the body of the victim was carried thereto in a police van by PW-9. The body was sent for postmortem thereafter at about 4.30 p.m. on 22^nd May, 2014. It therefore prima facie appears that the second inquest by the SDO was conducted after the postmortem. The investigation was taken up by the PW-10, Tilak Sanyal who competed the same and submitted charge sheet.

Charges were framed against the appellant under Sections 498A and 302 of the IPC by the trial Court on 27^th January, 2015.

PW-1 was Pankaj Mondal, a local resident who lived adjacent to the house of the appellant. He deposed that he heard about the assault by the appellant on the victim on the said night from another neighbour. He also deposed that the appellant assaulted his wife regularly and abused her. On being resisted by him and others, the appellant abused PW-1 in filthy language and asked him not to interfere in his family affairs. He reiterated in cross-examination that the appellant abused him in a filthy language when he asked the appellant not to assault his wife. He also deposed that there was a dispute with the appellant’s father regarding a boundary wall of the appellant’s house with the PW-1. He withstood the cross-examination.

PW-2 was Smt. Putul Mondal, a local resident who knew the appellant and his wife. She deposed that the appellant often assaulted the victim, his wife, regularly and on being asked not to do so, the appellant abused her with filthy language. She confirmed that the appellant was person who took his injured wife to the hospital. On the next day, the appellant was restrained by local persons as he was trying to flee away with his baby child. Her evidence was not shaken in cross-examination.

PW-3 was Sujan Biswas, the next door neighbour. He has deposed that the appellant has threatened him with dire consequences during the pendency of the trial while he was deposing thereat. He deposed that the appellant killed the victim by assaulting her. He tried to stop the appellant from assaulting his wife but was asked not to interfere in his family affairs. He heard the appellant assaulting his wife on the date, time and occurrence. He also knew that the appellant had taken his wife to the hospital. In the morning when he heard the baby of the appellant and the victim crying, he enquired of the appellant as to the whereabouts of his wife. He was told by the appellant that his wife Asha had died. PW-3 was threatened with dire consequences by the appellant while he was being examined in course of the trial Court. In cross-examination, he deposed that he signed on the inquest report conducted by the PW-9. He went to the Habra P.S. to lodge a complaint based on which formal FIR was drawn. He further deposed that the police had arrived at about 8 -8.30 a.m. in the morning and he went to the police station around 2.00 p.m. The complaint was written by scribe on the instructions of PW-3. He was cross-examined on the land dispute between the appellant’s father and himself.

PW-4 was Narayan Ch. Roy, another local resident. He was also threatened with dire consequences by the appellant in the trial Court while he was deposing. He deposed that the appellant had brutally assaulted his wife after consuming alcohol. He also deposed that the appellant took his wife to Habra Hospital. He denied any dispute with regard to the residential house with the appellant or his father. He reiterated that he told to the police that the appellant often consumed alcohol and assaulted his wife.

PW-6 was Tapan Bairagi. He was a local resident. He went to the house of the house of the appellant when he heard that the appellant was trying to assault his wife. He tried to prevent the assault but was abused by the appellant. He reiterated the above facts in his cross-examination.

PW-8 was Dr. Supriti Ghorai, who conducted the postmortem on the body of the victim at Barasat District Hospital. He deposed that he found a fracture on the skull of the victim. He also found deep lacerated wounds on the forehead, left shoulder and left leg of the victim. He also found abrasions on the face, top of shoulders, left leg, right thigh and on the wrist of the victim. He further found bruises on the left hand, right elbow, left thigh and left leg. He found fracture on the scalp of the victim resulting in subdural haematoma. He further deposed that the injuries were caused with a blunt hard substance and the said injuries led to the death of the victim.

PW-9 was Mir Alauddin, who conducted the first inquest of the vitim.

PW-10 was Tilak Sanyal was the first Investigating Officer who went to the P.O., prepared sketch map and recorded the statements of several witnesses, collected the postmortem report and the injury report of the victim. He deposed that he went to the P.O. on several occasions between 23^rd May, 2014 and 29^th May, 2014. He also caused photographs to be taken by a photographer. Nine photographs were marked for identification but not proved with the help of the photographer.

Based on the evidence as above, the trial Court convicted the appellant as already stated above.

Mr. Deepak Prahladka, learned counsel appearing for the appellant would firstly argue that there is serious contradiction in the date and time of arrest and the production of the appellant before the Magistrate for remand. He argued that while the appellant was admittedly arrested on 22nd of May, 2014, he was produced before the Magistrate on 27th May, 2014. This constitutes a severe lapse on the part of the police entitling the applicant to acquittal. He also argued that there are contradictions in the first and second inquest reports. While PW 3 had stated that he was at home at about 8 to 8.05 pm, the inquest was conducted by PW 9 at the same time, he therefore could not have been present to sign the inquest report as could not have been PW 4.

It is further argued that if the body was sent for postmortem on 22nd May, 2014 around 2 pm, the second inquest by the Executive Magistrate admittedly held on the next day i.e. 23rd May, 2014 is a fabricated document. Firstly no inquest can be conducted after the conduct of postmortem and secondly prosecution was deliberately trying to create evidence against the appellant. His client ought to be acquitted on the ground alone. He also argued that weapons used in the assault were not produced in Court. He also relied upon on this report of the medical officer at Habra Hospital, which recorded that the victim met with a fall.

Reliance is placed on the decisions of the Supreme Court in the case of Mohd. Zahid Vs. Govt. of NCT of Delhi reported in (1998) 5 SCC 419.

This Court, however, notes that in the said decision the Supreme Court found interpolations in the case diary as regards time when the police left the police station and the time of actual apprehension of the accused therein. The accused was found carrying three country made weapons and cartridges. The case was thus based on the recovery of weapons from the person of the accused therein and conviction followed.

The Supreme Court had acquitted the appellant therein in essentially in the light of the inconsistency in the recovery where recovery of weapons from the accused was the principal allegation. The facts of the said case are therefore distinguishable from the facts of the instant case. The said Mohd Zahid decision (supra) has no manner of application herein.

In the instant case, even accepting that the first and second inquest reports may have been forged and fabricated or ex facie illegal, the same would not ipso facto lead to the acquittal of the appellant.

This Court finds that the evidence of PW 2, 3 and 4 is clear, explicit and sufficient to establish the prosecution case that the victim in drunken condition was assaulting his wife. It also transpires from the said evidence that the appellant often assaulted his wife on prior occasions and abused. PW 1 to 4, were abused in filthy language by the appellant on their intervention asking them not to interfere in his personal matters. PW 3 and 4 have clearly witnessed the assault on the victim the previous night.

The aforesaid evidence read with the postmortem report of PW 8 clearly establishes that the victim was brutally assaulted by the appellant. It is as a result of this that the victim died. This regard the defence of the appellant that the victim sustained injuries as a result of fall on a tap in the rest room of the house, does not inspire any confidence to this Court. In any event, a doctor records history of what is told to him by a patient party. The same cannot be taken a sacrosanct in a criminal trial.

Non examination of the first Dr. Samir Mondal at Habra General Hospital, which he recorded the history of the patient as having sustained injuries by reason of a fall, is not fatal to the prosecution case. The victim could not have sustained injuries enlisted by PW 8 merely a fall on a tap.

Non recovery of weapons in the instant case used for assaulting the victim is equally not fatal to the prosecution case in the light of the clear and unimpeachable evidence of PW 1 to 4 read with the medical evidence of Pw 8.

The alleged property dispute between the appellant’s father and the PW 1 to PW 4 cannot eclipse the other testimony and the medical evidence on record.

In the light of the above discussions, this Court is of the view that the omissions, deliberate or wilful on the part of the prosecution in respect of the inquest on the victim and post arrest omissions, assumes little importance.

The omissions on the part of the arresting officers and the delayed production before the Magistrate may have been relevant for grant of bail before investigation. In any event the charge sheet indicates that the appellant was produced before the Magistrate on the next date i.e. 23rd May, 2014.

Having regard to the above, this Court is of the view that the conviction of the appellant under Section 302 of the IPC, is indeed supported by sufficient evidence and material on record. The enmity between the appellant’s father and the PW 3 and 4 even if accepted assumes a much lesser importance in the light of the charges against the appellant, the evidence on record and the findings of the trial court.

Having regard to the discussions made herein above, this Court is of the view that no relief can be granted to the appellant.

Accordingly, CRA 364 of 2016 is dismissed. Consequently, connected pending application, if any, is also dismissed.

Let the TCR along with a copy of this judgement be returned back to the trial Court for necessary action.

All parties shall act on the server copy of this order duly downloaded from the official website of this Court.

I agree.