Nikhil Mondal vs State of West Bengal

Girish Chandra Gupta, J.

The Judgment of the Court was delivered by:

This appeal is directed against a judgment and order dated 20th July, 2006 passed by the learned Additional Sessions Judge, lot Court, Malda is Sessions Trial No. 15 of 1996 arising out of Sessions Case No. 23 of 1994 convicting the appellant u/s 302/498A of the Indian Penal Code.

The appellant was sentenced to suffer imprisonment for life as also to pay fine of Rs. 5,000/- in default to suffer rigorous imprisonment for six months for the offence punishable u/s 302 of the Indian Penal Code and he was also sentenced to suffer rigorous imprisonment for one year and also to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for one month for the offence u/s 498A of the Indian Penal Code.

Aggrieved by the order, the convict has come up in appeal.

The facts and circumstances of the case briefly stated are as follows:

Patobala Mondal, a young woman, aged about 20 years, died on 3rd July, 1989 within three years of her marriage. Naresh Mondal, father of the deceased, came to know about the incident from a member of Bhakuria Gram Panchayat. No information in that regard was given to him either by the husband of the deceased Patobala or by any of her in-laws.

A written complaint dated 8th July, 1989 was lodged on 9th July, 1989 alleging that the appellant Nikhil Mondal, husband of the deceased and his mother Annada had instigated the deceased to commit suicide. On the basis of the written complaint a case under sections 498A and 306 of the Indian Penal Code was started. The appellant, Nikhil and his mother Annada were ultimately charged under sections 498A, 302, 201 and 304B read with section 34 of the Indian Penal Code.

The learned Trial Judge has convicted the appellant for the charge under sections 498A and 302 read with section 34 of the Indian Penal Code. The mother of the appellant Annada died during the pendency of the trial.

When the appeal was taken up for hearing on 20th June, 2008, Mr. Bhattacharyya, the learned Advocate, appearing for the appellant, submitted that the evidence of the PW.8 and the PW.11 was not put to the accused during his examination u/s 313 of the Code of Criminal Procedure. In order to put the controversy at rest, this Court directed the Superintendent, Berhampore Correctional Home to produce Nikhil, the appellant before this Court so that examination u/s 313 of the Cr. PC to the satisfaction of the appellant could be conducted by this Court. The appellant was examined by us yesterday i.e. on 21st July, 2008 u/s 313 of the Cr. PC.

The sum and substance of his case is that there was lack of harmony between the deceased Patobala and the deceased mother of the appellant. According to him, due to dispute between the mother-in-law and the daughter-in-law Patobala committed suicide by hanging. He added that after the rope was snapped Patobala fell on the floor causing injury on her head and other parts of the body. Attempts Were, made to revive the life of Patobala by massaging oil and that is why mustard oil was also found by the police. He added that during the pendency of the trial he had married once again and procreated a daughter who is now aged about 14 years. He prayed for mercy as well as reduction of the punishment.

The statement made by the appellant does appear to have some grains of truth although the same is highly exaggerated. By a self-exculpatory statement he has conveniently passed on the blame entirely to his deceased mother while he admitted that there were disturbances between the mother-in-law and the daughter-in-law which led the latter to commit suicide. We have already noticed that the complaint filed by the parents of the deceased was that the accused persons had instigated Patobala to commit suicide. Sight cannot also be lost of the fact that almost five days after the incident the written complaint was lodged. Therefore, the complainant party had enough time to ascertain the cause of death and it is on that basis the written complaint was made. The inquest report prepared on 4th July, 1989 at 00.45 hours contains the following significant information:

"On today morning at about 10.00 hrs. the youngest sister [Latika Mondal (Illegible)] drew the attention of the local and adjacent women that her body is hanging in a rope and somebody of them have cut this rope. It is the views of the local witnesses that she was at that time alive and immediate after that expired."

This information appearing from the inquest report marked Exhibit 4 goes a long way to probabilise the case of the defence that the injury on the head may have been caused due to snapping of the rope by which the body was hanging. The inquest report also goes to show that at the time the rope was snapped she was as alive.

The learned Trial Judge took the view that this was a clear case of murder on the basis of the report of the autopsy surgeon who deposed that the injury on the head was sufficient to cause death. It is on this basis that the Trial Judge opined as follows :-

"Therefore, I think the evidence of the doctor has remained unshaken and Patobala has died a homicidal death."

The opinion of the doctor that the death was homicidal is based on the Haematoma found on the right frontal region of the skull. We are inclined to believe the statement made by the appellant during his further examination u/s 313 of the Cr. PC that the head injury was caused because Patobala fell on the floor after the rope by which she was hanging had been snapped. We are, therefore, inclined to hold that the death was not homicidal but was really suicidal.

The learned Trial Judge has found that there was continuous torture upon the deceased by the in-laws including the husband. The Trial Judge as a matter of fact held the appellant guilty u/s 498A of the IPC. All the ingredients of the offence u/s 306 of the IPC are thus present.

For the reasons indicated above, we step down the conviction from one u/s 302 to section 306 IPC. We accordingly, set aside the order of conviction u/s 302 IPC and sentence imposed for that offence and convict the appellant for the offence punishable u/s 306 IPC and sentenced him to suffer rigorous imprisonment of eight years as also to pay a fine of Rs. 1,000/-, in default to suffer further rigorous imprisonment for a period of three months. The order of conviction and the sentence awarded by the learned Trial Court for the offence punishable u/s 498A of the IPC are maintained. Both the substantive sentences shall however run concurrently. With the above modification, the appeal stands dismissed.

The appellant is in custody and he is directed to serve out the remaining part of his sentences as indicated above.

The appellant shall get the benefit of set-off in terms of section 428 Cr. PC out of the period of imprisonment already undergone.

The learned Lower Court is directed to issue necessary revised jail warrant as required by the rules in respect of this appellant.

Let a copy of the judgment along with the Lower Court Records be sent down to the learned Court below for information and necessary action.

Urgent xerox certified copy of this judgment, if applied for by the parties, be delivered to them upon compliance of all formalities.

Kishore Kumar Prasad, J.