Pulin Mondal vs The State of West Bengal

Rajasekhar Mantha, J.:

Let Mr. Rajendra Banerjee, Ld. APP, Mr. Snehasis Banerjee, Mr. Arijit Bhusan Bagchi and Mr. Sankalpa Bhattacharjee are requested to represent the State in the instant case. Let their appointments be regularized by the office of the Public Prosecutor, High Court at Calcutta.

The instant appeal is directed against the judgment of conviction dated 28^th March, 2016 and order of sentence dated 29^th March, 2016 passed by the learned Additional District & Sessions Judge, 2^nd Court, Tamluk, Purba Medinipur. The impugned orders have been passed in Sessions Trial No. 04(03) of 2014 arising out of Sessions Case No. 407(07) of 2013 wherein the appellant was convicted for life under Section 302 of the Indian Penal Code.

The appellant was the grandson of the victim. The victim was aged about 75 years old, a widow and was suffering from several ailments including paralysis. On 26^th May, 2012, sometime at 6:30 P.M. in the evening, about two days before Jamaisasthi, he had gone to visit his uncle’s house where the grandmother lived.

The grandmother received about Rs.700/- as senior citizen pension. He demanded money from his grandmother, who refused to give the same. Enraged the appellant, assaulted the grandmother on her face and neck with a Cuttari (sharp cutting agricultural implement).

After assault, he fled from the village called Charmarberia to neighbouring village at Baturberia, where his in-laws resided. The victim was found the next day morning by the family members of the appellant’s uncle. She had died by that time and was not taken to any hospital for treatment. The police were informed by someone and arrived at the place of occurrence on 27^th May, 2012.

After the arrival of the Police, a complaint was stated to have been filed by PW-1, Dulal Mondal, uncle of the appellant. The complaint was scribed by PW-12, Jaharlal Ghorai, a Registered Law Clerk. The appellant was arrested from his father-in-law’s residence. A formal complaint was also made by the father-in-law, Purna Chandra Maity (PW-9) on the advice of PW-10, Sambhu Das, a Member of Khakarda Gram Panchayat. The offending weapon was allegedly recovered near Bansal Brickfield adjoining Rupnarayan River, on being shown by the appellant in presence of PW-11 (Mojammel Mallik) and PW-13 (Sk. Montiar Rahaman).

Investigation was started and charge-sheet was filed. Charges were framed on 20^th March, 2014 against the appellant under Section 302 of the Indian Penal Code.

In course of trial, PW-1, Dulal Mondal, the complainant, denied having lodged any compliant and that he had signed on a blank sheet of paper. He was declared hostile along with PW-2, Susanta Shamli (nephew of the deceased; PW-3, Ujjala Shamli (neighbour); PW-4, Panchami Patra (daughter of the victim); PW-5, Kajal Kandar (another daughter of the victim); PW-7, Sova Mondal (wife of the PW-1, Dulal Mondal); PW-8, Arati Mondal (mother of the appellant).

Each of the aforesaid witnesses has consistently stated that the victim died after falling from cot. They, however, confirmed that the victim received a Senior Citizen Pension from the Government. Interestingly, PW-7, Sova Mondal, was named as an eyewitness to the incident by PW-1, Dulal Mondal, in his complaint.

Each of the aforesaid witnesses namely PW-7, PW-8, PW-9 and PW-10 had recorded statements under Section 164 of the CrPC, which was produced before the Trial Court but had stated that they had given such statements on the instructions of the police. Their Evidence-in-Chief belies the statements made under Section 164 of the CrPC.

The other witnesses, who deposed in the trial namely PW-6, Suva Dutta, who was the Pradhan of the Gopalnagar Gram Panchayat and PW-10, Sambhu Das, who was a member of the Khakarda Gram Panchayat, deposed that they only heard from other sources that the appellant killed his grandmother with a Cuttari for not being paid demanded money.

PW-19 was Dr. Pradip Das, who conducted the post mortem on the victim. He deposed that he found a lacerated wound of 1 cm & 1.3 cm running from the lower cheek of the victim to about 4 cm to the left side of her scalp. The wound was only scalp deep in a gutter fracture of the skull. There was sub-scalp hematoma and permanent blood fringed pericardium. Another lacerated wound was found on the left side of the neck of the victim about 2 cm below the first wound. It was 5 cm x 1.2 cm into muscle deep. Hematoma was seen with marks of dribbling of blood on either side of the face and neck. Another lacerated wound to the extent of 1.5 cm x 0.5 & muscle deep was found on the left side of the cheek. A third lacerated wound was found on the upper region of the left side of the left shoulder joint measuring about 7.8 cm x 5.36 cm. The other injuries found on the body of the victim were bruises on the arm and the chest wall. Ribs were broken.

The evidence of PW-9, Purna Chandra Maity, is of some interest. He was father-in-law of the appellant. He deposed that the victim had come to his house later in the evening on the date of the incident. He also deposed that he found blood stains on the wearing apparels of the appellant. He deposed that he called PW-10, Sambhu Das, the next day morning, who came to his house. On the advice of Sambhu Das he had informed the Kolaghat Police Station of the incident that he had only heard from other sources and allegedly the appellant himself.

Very curiously while PW-9, Purna Chandra Maity, was being cross-examined, the Trial Court declared him as a hostile witness on the prayer of the Public Prosecutor.

There are some arguments raised by the learned counsel for the appellant as to the propriety of the Trial Court declaring the PW-9, Purna Chandra Maity, as hostile in course of cross-examination.

There are omissions noted in the procedure adopted by the Trial Court. Even if the prosecution is entitled to pray for a witness being declared hostile in course of cross-examination, the cross-examination of PW-9 ought to have been stopped by the Trial Court and the prosecution ought to have been granted an opportunity to commence cross-examination of a hostile witness. It appears that Public Prosecutor chose not to do so. No such prayer is evident from the deposition of PW-9.

The evidence of PW-9 to the extent it supports the prosecution case in part, therefore, cannot be relied upon by this Court.

What has, however, weighed with this Court is the discovery of the weapon as pointed out by the appellant himself to the investigating officer and the evidence of two seizure witnesses therefor. There is equally some credence at this Court’s wishes to give to the evidence of PW-10, Sambhu Das, that the appellant may have confessed his participation in the offence in question. This read with the discovery of the offending weapon i.e. Cuttari and the clear medical evidence of lacerated injuries inflicted on the victim with a sharp cutting weapon does indicate the complicity of the appellant in the offence in question.

In the light of the aforesaid discussions, this Court is of the clear and unequivocal view that the offence was not committed with any premeditation. It was committed in a heat of the moment. The appellant demanded money from his grandmother to probably buy some clothes or gifts and participate in the Jami Sasthi ceremony at his in-laws place i.e. that of PW-9.

There is no evidence of any acrimony or enmity between the appellant and the victim. The evidence of PW-1, PW-2, PW-3, PW-4, PW-5, PW-7, PW-8 and PW-9, who deposed that the victim sustained injuries after falling from cot, cannot also be lightly brushed aside. The victim after being struck by the appellant, at least twice, may have sustained other injures on her person in the nature of bruises and broken ribs while attempting to get up from the bed and falling because she was otherwise paralyzed.

Two injures were inflicted by the appellant indeed fatal but the same were compounded by the injuries sustained by the victim while attempting to get up from the bed and falling on the floor.

Be that as it may, this Court is of the view that the assault on the victim occurred in the heat of the moment. The appellant could not have been convicted under Section 302 of the IPC particularly in the light of the evidence of PW-1, PW-2, PW-3, PW-4, PW-5, PW-7, PW-8 and PW-9.

In the light of the above, this Court inclined to and converts the sentence against the appellant under Section 304 of the IPC to the extent of 11 years of incarceration that he has already suffered.

The appellant, Pulin Mondal, who is on bail, shall be set at liberty and shall be discharged from his bail bonds. The appellant shall, however, execute a bond to the satisfaction of the Learned Trial Court, which shall remain in force for a period of six months under Section 437A of the Code of Criminal Procedure corresponding to Section 481 of the BNSS, 2023.

With the aforesaid observations, C.R.A. 448 of 2019 is hereby disposed of.

Let a copy of this judgment along with the Trial Court’s Record be forthwith sent down to the trial Court for necessary compliance.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.

I agree.