Gopal Mondal vs The State of West Bengal

Tapash Mookherjee, J—The present appeal is directed against the judgement and order of conviction and sentence dated 30-07-2010 and 31-07-2010 passed by the learned Additional Sessions Judge, Fast Track Court-IV, Krishnanagar, Nadia, in Sessions Trial No. II (6) 2008 (Sessions Case No. 40(5) 2008). By the aforesaid judgement and order, the trial court found the present appellant, Gopal Mondal, guilty of the offence punishable under Sections 341/307/34 of I.P.C. and sentenced the appellant to suffer different terms of imprisonment with fine for different offences proved.

The facts behind the appeal, in short, are as follows:-

One Tarun Das used to work as a cook in a guest house at Salt Lake and one Maina used to also work as a made-servant there and an intimacy developed between them because of working in the same place. Maina was a married woman and one Ala @ Ali Mondal of village Taraknagar under P.S. Krishnaganj, Nadia, was her husband.

On 21-07-2007 the said Maina seduced Tarun to visit Taraknagar on some false pretension. Accordingly, Tarun and Maina went to Taraknagar by train and they reached there at about 9.00 p.m. and after arriving there, when they were walking along with the road, then Maina''s husband Ala @ Ali Mondal along with the present appellant, Gopal Mondal, suddenly attacked Tarun by sharp weapons and because of several blows of sharp weapons given by them Tarun was severely injured and he fell down on the spot. Hearing in Tarun''s alarm some local people came on the spot and shifted the injured Tarun at Saktinagar hospital in that very night. In the following morning, Tarun''s brother, Arun Das got the information and thereafter he rushed to the hospital where he found his brother, Tarun, fighting for life. Arun Das thereafter submitted a written FIR narrating all the aforesaid facts, at Krishanganj P.S. on the basis of which Krishanganj P.S. Case No. 194 of 2007 dated 22-07-2007 under Sections 341/326/307/120B/34 of I.P.C. was started against the present appellant, Gopal Mondal and two other accused persons, namely, Maina wife of Ala @ Ali Mondal and Ala @ Ali Mondal as well. After the completion of investigation, charge sheet under Sections 341/326/307/120B/34 of I.P.C. was submitted against all the aforesaid three accused persons. The accused Ala @ Ali Mondal could not be apprehended during investigation and charge sheet was submitted showing him absconding.

After submission of charge sheet, the case was committed to the court of learned Sessions Judge, Nadia, in usual course from where the case was transferred to the court of the learned Additional Sessions Judge, FTC-IV, Krishnanagar, Nadia, for trial.

Considering the materials collected during investigation, charges under Sections 341, 307/34 and under Section 326 of I.P.C. were framed against the appellant, Gopal Mondal and the accused Maina Mondal as well. Both the accused persons denied the charges and pleaded their innocence all along. The accused Maina Mondal has absconded during the trial and as such, the case stands filed for the present against her.

Prosecution examined as many as 13 witnesses in the case and proved some documents as well. Defence tendered no evidence whatsoever. Considering the evidence, thus, produced on record, the trial court found that the appellant, Gopal Mondal, guilty of the offences punishable under Sections 341/307/34 of I.P.C. and sentenced the appellant to suffer R.I. for one month with fine of Rs. 500/- for the offence under Section 341 of I.P.C., to suffer R.I. for seven years with fine of Rs. 1000/- for the offence under Section 307 of I.P.C. and hence, the appeal.

Mr. Kar, learned Advocate appearing for the appellant, has submitted that the victim, i.e. the P.W.8 was the only direct witness of all the incidents and he implicated the present appellant during the trial only and there are reasons to doubt into his veracity so far as his identification of the present appellant on dock is concerned. He further argued that the trial court has found the appellant guilty just on the basis of some presumptions and irrelevant materials on record which is not permissible in law.

On the other hand, learned Advocate, Mr. Keshari, appearing for the State has argued that P.W.8 has described the incidents of assaults with all details and he has identified the present appellant as one of the assailants and he is a dependable witness and as such, the trial court has rightly found the appellant guilty of the charges framed against him.

Admittedly, the incident of assault took place in an isolated place in the night and none of the witnesses excepting the victim himself claimed to have witnessed any of the incidents.

One Sanat Roy (P.W.1), Nemai Sarkar (P.W. 2), Bikash Bala (P.W.3) and Sudhangshu Mazumdar (P.W.5) in their evidence stated that in the night of the incident, they found the victim being injured in pool of blood on the village road and they shifted the victim to the local hospital. One Bidyut Biswas (P.W.4) stated that he knew about the incident one day after.

Sudip Ghose (P.W.6) was the caretaker of the premises No. 185, Block CJ, Sector-II, Salt Lake, Kolkata and according to him, the said premises was being used as a guest house at the relevant time and the victim Tarun Das was engaged as the Cook and a woman named Maina was engaged as a maid-servant in the said guest house at the relevant time. Sri Ghose stated that the victim Tarun Das was attacked and assaulted in the night of the incident and the said Maina was involved in those incidents of assault and he came to know it from the police only.

Arun Das (P.W.7) was the elder brother of the victim, Tarun Das and he submitted the F.I.R. in the case. Sri Das at the very beginning of his examination-in-chief admitted that he himself had not seen the incident. He stated that one day in the morning having received an information that his brother, Tarun Das, was admitted at Nadia District Hospital, he rushed to that hospital and found his brother, Tarun Das, lying in that hospital with serious injuries. He stated further that in the hospital, he found some unknown persons accompanying the police and one of those unknown persons scribed the F.I.R. on which he had put his signature. So, P.W.7 was not also an important witness in the case.

One Goutam Ghose (P.W.10) scribed the F.I.R. as claimed and according to him, he scribed the F.I.R. as per the dictation of the F.I.R. maker Arun Das.

Dr. Joydeep Roy (P.W.9) was posted at Nadia District hospital and he treated the victim, Tarun Das, in that hospital in the night of 22.07.2007.Dr. Roy described the injuries he found in the person of the victim.

S.I. Jahar Lal Chatterjee (P.W.11) investigated and submitted charge sheet in the case.

One Renu Das (P.W.12) was a sister of the victim and she stated that after the incident, she met his brother, Tarun, in the hospital and she came to know from his brother that her brother was assaulted by the present appellant and one Ali.

Dr. Nina Halder (P.W.13) was posted at Krishnaganj Rural Hospital as M.O. at the relevant time and she examined the victim in that hospital in the night of 21.07.2007. Dr. Halder described the injuries and the condition of the patient she found on examination.

So, none of the witnesses mentioned above is a direct witness of the incident of assault in the case.

The victim Tarun Das, i.e., P.W.8 is the only direct witness for the prosecution. Sri Das in his evidence stated that he was working as a cook in the house No. 185, CJ Block, Sector-II, Salt Lake, Kolkata and one Maina, wife of Ala @ Ali was also working with him in the same premises. He stated further that in the night of 21.07.2007, he had gone at Taraknagar by a local train at the instance of said Maina to visit the house of Maina''s elder sister there. P.W.8 stated further that at about 9-30 p.m. when they were moving towards their destination by walk, they found in the moon light two persons being armed with Bhojali and Revolver coming towards them and when he tried to run away, he was attacked and assaulted by those two persons with weapons in their hands. He stated further that because of such assault, he fell down on the ground and hearing his cries, some local villagers came on the spot and reported the incident to the police station, after which police came and shifted him at Saktinagar hospital. P.W.8 has given a detail description of the assaults on him and the injuries caused thereby. But he candidly admitted that he could identify only Maina''s husband, Ala Mondal @ Ali Mondal, on the spot as one of the assailants and that he came to know subsequently from the local people gathering on the spot that the present appellant, Gopal Mondal, was the other assailant. However, he identified the appellant, Gopal Mondal, standing on the dock at the time of his examination in the trial court as an assailant also. He stated further that the assailants in conspiracy with Maina intended to kill him.

There cannot be any dispute to the fact that P.W.8, Tarun Das, was assaulted by sharp-cutting weapon in the night of 21.07.2007 due to which he sustained several injuries in his person and he was treated at first at Krishnaganj Rural hospital and thereafter at Nadia District hospital. He was treated in some other hospitals also as stated by him but no medical paper has been produced to show his treatment, if any, in all those other hospitals. The injuries thus sustained by P.W.8 was very serious as found from medical evidence on record.

So, the fact to be decided is who was the assailant. As discussed earlier, most of the witnesses examined were post-occurrence witnesses and it was only the victim who was a direct witness for the prosecution to identify the culprits.

The victim, i.e., P.W. 8 stated that because of working in the same place, he developed an intimacy with one Maina (the accused in the case) and in the night of the incident he went to Taraknagar at the instance of said Maina to visit the elder sister of Maina. He stated further that after getting down from a local train at Taraknagar Railway Station, they started moving towards the house of Maina''s elder sister and it was night and the road was lonely. He stated further that when they were moving towards their destination, two persons with arms like Bhojali and Revolver suddenly appeared there and stopped them on the way and having smelt danger when he tried to flee away, he was hit by a Bhojali thrown at him and thereafter he was assaulted with sharp-cutting weapon on his back, shoulder, arm and in different other parts of his body. He further stated that four of his fingers of his left hand were completely chopped off and he received injuries on his head also. But P.W. 8 claimed to have identified only the accused Ala Mondal on the spot as an assailant and from the conversation of the local people gathering on the spot after the incident, he came to know that the present appellant, Gopal Mondal, is the other assailant. However, at the concluding part of his examination-in-chief, he identified the appellant, Gopal Mondal, standing on the dock to be an assailant.

Now, question comes how far the identification of the appellant as an assailant by P.W. 8 can be accepted as dependable and true.

P.W. 8 and the absconding accused Maina had intimacy and the absconding accused Ala @ Ali Mondal happens to be the husband of Maina. P.W. 8 visited their house and so the absconding accused Ala @ Ali Mondal was well known to P.W.8 well before the incident, but there is no evidence on record to suggest that P.W.8 had ever seen the appellant, Gopal Mondal at any point of time before the night of the incident. It should be kept in mind that the incident took place in between 9-00 to 9-30 p.m. P.W. 8 claimed that it was a moonlit night and he identified the assailant in the moon light but there is no material on record to suggest that it was a moonlit night.

After arrest, the appellant, Gopal Mondal, was not placed in any Test Identification Parade for his identification by the victim, P.W.8. So, P.W. 8 had the occasion to see the appellant after the incident only on the day of his evidence and P.W.8 during his evidence identified the appellant as an assailant.

Mr. Kar argued that during evidence of P.W.8, the appellant was the only accused standing in trial and standing in dock also. It was therefore natural for P.W.8 to describe the appellant as an assailant. So, such an identification especially in absence of any Test Identification Parade during investigation has no value.

In reply, Mr. Keshari argued that identification of an accused in the court during trial is the most important evidence in a case and in the present case, the victim himself identified the appellant on dock on oath. So, such identification has all the values. Mr. Keshari also cited a decision reported in AIR 2013 SC (Cri) 1585.

In the case cited by Mr. Keshari, there were several accused persons standing together in the dock during evidence and there were several eye witnesses who supported the prosecution case. But in the present case, the appellant, Gopal Mondal, was the only accused standing in trial and he was only in the dock during evidence of P.W. 8. The evidence of P.W.8 is the only direct evidence in the case as mentioned earlier. So, the decision cited by Mr. Keshari cannot be applied in the present case.

P.W.8 in one place of his examination-in-chief stated that "At the time of attacking, I could only identify the accused, Ala Mondal but I could not identify other person who also attacked me. But the person who had appeared in the spot told me that one Gopal Mondal was also there and they both has conspired in the station to kill me". If the fact was so, then how P.W.8 could identify the appellant during trial as an assailant is not understandable. It should be noted here that P.W.8 claimed that some local persons gathering on the spot after the incident disclosed the name of the present appellant as an assailant before him. But none of such local persons examined in the case stated that he found the appellant, Gopal Mondal, on the spot or assaulting P.W.8.

P.W.7 submitted the F.I.R. in the case. In the F.I.R., P.W.7 stated that he came to know all about the incidents from his brother, i.e. the victim on the basis on which he prepared the F.I.R. But during his evidence, P.W.7 stated that when he was at hospital he found several persons along with the police and somebody amongst those unknown persons gathering in the hospital scribed the F.I.R on which he put his signature. It is, therefore, found that P.W.7 submitted the F.I.R. without having any direct or personal knowledge about the facts stated therein. But P.W.10 who scribed the F.I.R. stated that he prepared the F.I.R. as per the dictation of P.W.7. It is not, therefore, proved on whose dictation the F.I.R. was prepared. This is also a big flaw in the prosecution case. P.W.12 stated that she came to know from her brother, i.e. the victim, that her brother was assaulted by the present appellant also but from the evidence of the I.O., it is found that she had not stated any such fact before the I.O. during investigation.

P.W.13, a medical officer, who examined P.W.8, stated that the victim stated before her that the victim was assaulted by one Ali Mondal and one other. But the victim did not mention the name of the present appellant as the other assailant. Had the victim known it from the conversations between the local people gathering on the spot after the incident the name of the present appellant as one of the assailants he should have stated it before P.W.13, before whom, P.W.8 named the accused Ala @ Ali Mondal as an assailant.

On the point of identification of the present appellant as an assailants, learned Trial Judge, to some extent, relied on some statements of the witnesses recorded under Section 161 of Cr.P.C. The witnesses, who have been examined in the case, have not stated those facts during their evidence on oath and the learned Trial Judge went through their statements found in the C.D which is not permissible in law. It was also the view of the learned Trial Judge that the night was not completely dark so the victim had the opportunity to identify the assailants.

As mentioned earlier, there is no cogent evidence to show that the night of the incident was a moonly night. The incident took place in rainy season and it was raining in the night as stated P.W.5. It has not been proved that the present appellant was previously known to P.W.8. A known person can be identified in the glow of light in the night but it is difficult to identify an unknown person in a raining night. It is true that P.W.8 had no previous enmity with the present appellant. So, false implication may not be there but possibility of mis-identification cannot be ruled out in the facts and circumstances of the case.

As mentioned earlier, P.W.8 was the only direct witness for the prosecution to prove the involvement of the present appellant in the incident of assaults in question. But due to the reasons, discussed in detail above, it is difficult to accept the identification of the present appellant as an assailants by the victim during the trial when the appellant was the only persons standing on dock, as out and out true. The reasons of the learned Trial Judge to find the appellant guilty is more or less based on presumption and needless to say that presumption is no substitute of proof. Having, thus, regard to the facts and circumstances of the case and all the evidence thereupon, I have no hesitation to hold that the learned Trial Judge has wrongly found the appellant guilty and the findings and the decisions of the learned Trial Judge is not sustainable in law. The appeal is, therefore, allowed. The judgement and order of sentence passed in the case against the appellant are set aside.

The appellant, Gopal Mondal, is found not guilty of the charges under Sections 341/307/34 of I.P.C. and accordingly, he is acquitted of those charges. Bail bond furnished by the appellant, Gopal Mondal, stands discharged.

The L.C.R be sent back to the trial court along with a copy of this judgement at once.

Photostat certified copy of this order, if applied for, be given to the parties on priority basis.