Sudhir Mondal vs State

Ashim Kumar Banerjee, J.

PROSECUTION STORY

The victim was living alone in her residence. Her relations were in the adjacent house. However, in the night, one of her relations, a minor girl, used to sleep with her. On and from September 30, 2010 the victim Basanti Baidya was not found alive. Her door was locked. After about 4-5 days P.W. 35 while passing through the victim''s house found a foul smell coming out of the house. After informing all, the doors could be opened when she was found lying dead. The accused Sudhir Mondal was staying in his house along with his wife Mamoni Mondal which was at the back of the victim''s house. Sudhir and Mamoni left their residence in between September 30, 2007 and October 10, 2007. Subsequently, they were arrested. The key of the door that was locked, could be found from the house of Sudhir and Mamoni. The police also found the ornaments and T.V. belonging to victim missing. Those could be subsequently recovered from the possession of Sudhir and Mamoni. Both of them were tried under Section 302/34 I.P.C. They were also charged with an offence punishable under Section 380 read with Section 34 I.P.C. They pleaded not guilty and opted to be tried.

P.W.1 Apurva Baidya was the son of Basanti. His father married thrice. He had one step sister Krishna Baidya from his father''s first marriage. He was the son of the second wife. He had two full brothers and one sister namely Anadi Baidya, Avani Baidya (since deceased) and Sagorika Baidya (since married). From the third marriage he had three step brothers and one step sister. They were all residing on the same plot of land having separate houses. Basanti was staying alone. She was doing her household job by herself. On October 05, 2007 at about 10 a.m. Amitosh Baidya, his son reported some bad smell coming out of the house of Basanti. The front door was closed. However, the back door was open. He immediately rushed to the local Pradhan Babul Biswas and reported the matter. He came back and with the help of the neighbours, other brothers and family members, entered the room through the back door and found his mother lying dead on the cot. He reported the matter to the police. He also disclosed about the missing articles. He identified the dead body before the Autopsy Surgeon. He also identified the accused in Court.

P.W.2 Sumitra Baidya was a mid-day meal cook in the nearby school. She also corroborated her husband P.W.1. P.W.3 Babul Biswas was the Panchayat Pradhan. He deposed, Apoorva and Akhil came to his office and reported, their mother could not be traced out for last 3-4 days. They were also getting foul smell from the house. He advised them to immediately go and check. Then the police arrived at his Panchayat office and with the police he went to the house of Basanti where the dead body could be recovered. He identified his signature when Mamoni was arrested in his presence. She confessed having the key of the lock concealed in her house wherefrom the key was recovered by the police. He signed the seizure list. Mamoni brought the key from inside and handed over the key to the police. P.W.4 Srinivas Rao was also a neighbour. He was a seizure witness. In cross-examination he deposed, he was outside the house of Mamoni accompanied by SHO, Diglipur P.S. when others entered the house of Mamoni. P.W.5 Akhil Baidya is also a son of the victim. He corroborated his brother and the sisters-in-law being the P.W.1 and P.W.2 and the other local witnesses. P.W.6 Ashim Baidya is also a son of the victim. He corroborated the other witnesses. P.W.7 Basanti Baidya was the wife of Akhil being P.W.5. She also corroborated the other witnesses. She made a voluntary statement to the effect, while she was coming back from the school after putting her son in the school she got the foul smell and reported it to her husband. She also found the T.V. missing in the room, the suitcase belonging to her mother-in-law was also under broken condition.

There were altogether 38 witnesses. We may not refer to all for the simple reason they could not throw any additional light, save and except corroborating the other witnesses. They are either neighbours or the family members of the victim.

P.W.31 Dr. Amitab Mukhopadhyay is the Autopsy Surgeon. He gave a vivid description of the injuries. According to him, the death was caused by strangulation. The body was in highly decomposed condition. Pertinent to note, the post mortem was done on October 5, 2007 whereas the victim had been found missing on and from September 30, 2007.

P.W.38 Shri J.S. Yadav was the investigating officer. He gave a detailed narration of the investigation that started on October 5, 2007 when the body was recovered. P.W.37 Shri P. Abdullah was the goldsmith from whose custody the gold ornaments were recovered.

THE JUDGEMENT AND ORDER OF CONVICTION

The learned Sessions Judge, by his judgement and order dated November 29, 2013 appearing at pages 305-335 of the Paper Book, convicted Sudhir Mondal under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life. The other accused Mamoni Mondal was acquitted from the charges under Section 302, however, convicted under Section 380 of the Indian Penal Code and imposed a punishment of four years rigorous imprisonment coupled with a fine in default, three months simple imprisonment. The learned Judge considered the evidence on record and closely examined the entire evidence. The key was found in possession of Mamoni that would prove their involvement. The T.V. was recovered from their possession. The other gold ornaments were found from the possession of the goldsmith that they deposed to have kept by the accused. This fact coupled with the disappearance of Sudhir and Mamoni immediately after September 30, 2007 would raise pointer only to the accused and none else. The learned Judge observed, this circumstantial evidence would lead to their involvement in the case. He summarised the prosecution case as set out below:-

"The circumstances relied upon by the prosecution are (1) the motive of crime to steal ornaments, (2) the fact that the accused persons were absconding, (3) recovery of T.V. and ornaments of the victim from the possession of the accused persons as per statement of accused, (4) the recovery of the key of the lock of the room of the victim and (5) the dead body was found in the locked house and key of the lock was found from accused." 8. According to him, the circumstances proved by the prosecution were specific and conclusive in nature. Thus, all the circumstances conclusively established, the accused persons were the only persons who could have committed the murder of the victim to steal away the T.V. and the gold ornaments belonging to her. Sudhir confessed, he committed the crime alone and Mamoni only helped to dispose of the stolen articles. Hence, the learned Judge gave benefit of doubt to Mamoni and acquitted her from the charges under Section 302. He signed the judgement and order of conviction in case of Sudhir. According to him, the entire chain of circumstances was complete without any break that would conclusively prove the offence to have been committed by the accused and nobody else.

THIS APPEAL

Being aggrieved Sudhir filed the above appeal that we heard on the above mentioned date.

CONTENTIONS

Mr. Rakesh Pal Govind argued the matter on behalf of Sudhir. He would rely on the discrepancies that would appear from the evidence of Page Nos. 5, 6, 8, 10 and 12 to show the discrepancy in the evidence. According to him, when Basanti had gone missing on September 30, 2007 neither any complaint was made nor was any enquiry conducted about her whereabouts. She was not seen alive for five days and her family members, although residing in the next house, did not make any complaint. On the alleged story of stealing of articles, he would submit, the situation so stated to be proved by the prosecution witness was somewhat abnormal. The recovery was made without following the principles of Evidence Act. He would strongly rely upon the statement of P.W.4 who categorically stated in cross-examination, he was standing outside with SHO, Diglipur P.S. when the people entered into the house of Mamoni along with her wherefrom the key was recovered. The SHO, Diglipur, the P.W.38 however, deposed otherwise that would raise doubt in the mind of the Court. According to him, it was quite unnatural, the victim could not be found for five days and her relatives staying in the next house would not raise any hue and cry on those four days and the body could be recovered from her house in a highly decomposed condition. Hence, the time of occurrence could not be made specific. The nature of injury so suggested by the Autopsy report would also not support the prosecution story. On the conviction, Mr. Rakesh would submit, the learned Sessions Judge, although held the accused guilty of the offence, gave benefit of doubt to one of the accused persons and did not extend such benefit to the other that would itself support his appeal leading to acquittal of the appellant herein.

Per contra Mr. S.K. Mandal, learned Public Prosecutor would rely on the post mortem report and the evidence of the investigating officer to show, there was no discrepancy. The circumstances would suggest, the victim preferred to stay alone. She possibly did not maintain close relationship with her family members, although the minor girl used to stay with her in the night. Accordingly, nobody took interest about her. Her absence was noticed by her family members but they did not take it seriously until the bad smell started coming out of her house on October 05, 2007. They immediately reported it to the police and police recovered the dead body. The learned Judge rightly convicted the accused. On the question of giving benefit of doubt to the other accused, Mr. Mandal would submit, there was no room for giving any benefit of doubt to the other accused. However, he would refrain from making any comment on the same in absence of any appeal preferred on behalf of the State. He would pray for dismissal of the appeal.

The sum total of the evidence as correctly analysed by the learned Sessions Judge would conclusively prove the incident that had happened. The involvement of the accused was also conclusively proved. State did not prefer any appeal from the acquittal of Mamoni. We are told, Mamoni also filed appeal against her conviction before the learned Single Judge. We do not make any comment on her acquittal, particularly, in absence of any appeal from the State. On the involvement of Sudhir, we are of the view, there is no scope for raising any doubt as to his involvement. Basanti was residing alone in her house. Sudhir was staying in his house that would be on the back side of Basanti''s house. The door was found under lock and key from September 30, 2007 although the back door was open. Sudhir and Mamoni were not found in their house since then. When they were arrested the police could recover all the stolen articles from the possession either of the accused or from someone with whom the accused had kept the articles. The front door key was also found from the possession of Mamoni. The Autopsy report would prove, Basanti died out of strangulation. The injury was homicidal in nature. Happening of such unnatural death and missing of the valuable articles would suggest a great nexus with each other. Since the keys were recovered from their possession it would lead to an impeccable conclusion as to the involvement of the accused in the murder of victim. The learned Judge travelled in such direction that would be accurate. We do not find any scope of interference.

The appeal fails and is hereby dismissed.

Let the lower court records be sent down at once. Copy of the judgment be sent to the correctional home for information and a copy be given to the convict.

Tapash Mookherjee, J.

I agree.