NIZAM MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgment and order dated 15th June, 2015 passed by the learned Additional Sessions Judge, 2nd Court, Hooghly Sadar in Sessions Trial No. 14 of 2013 [Sessions Case No. 126 of 2013) convicting the appellant for commission of offence punishable under Sections 302/323 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life for the offence punishable under Section 302 IPC and to pay fine of Rs.500/, in default, to suffer rigorous imprisonment for one month for the offence punishable under Section 323 IPC; both the sentences to run concurrently.

(2.) The prosecution case as alleged against the appellant is to the effect that on 1st December, 2012 at about 9:00 A.M. there was an altercation between the appellant and his wife namely, Jyotsna Begam (co-accused) on the one hand and Jahura Bibi, mother of the appellant (PW1) on the other hand over construction of a wall on their bastu land. In the course of altercation, Jahura was assaulted. Mojammel Mondal (the deceased), another son of Jahura and his wife Jarina Bibi (PW3) intervened. Thereupon, appellant hit Mojammel on the head with a wooden bat and the victim fell down. Then the appellant again hit him with a shabal on the head resulting in bleeding injuries. Jahura was assaulted by Jyotsna. The victim was shifted to Dhaniakhali Rural Hospital and thereafter to Burdwan Hospital where he expired. In the meantime, on the written complaint of Jahura Bibi, Gurap Police Station Case No. 98 of 2012 dated 01.12.2012 under Sections 341/324/326/307/506 IPC was registered for investigation. Subsequently, on the death of the victim Section 302 IPC was added to the array of offences. In conclusion of investigation, charge-sheet was filed against the appellant and his wife namely, Jyotsna Begam. The case being a sessions triable one was committed to the Court of Sessions and transferred to the court of the learned Additional Sessions Judge, 2nd Court, Hooghly Sadar for trial and disposal. Charges were framed under Sections 302/34 and Sections 323/34 IPC against the accused persons. They pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 19 witnesses and exhibited a number of documents. Four court witnesses were examined including the Medical Officer (CW1) who had treated the deceased and Jahura Bibi (PW1) at Dhaniakhali Rural Hospital. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 15th June, 2015 convicted and sentenced the appellant, as aforesaid. However, co-accused namely, Jyotsna Begam was convicted and sentenced for commission of offence punishable under Section 323 of the Indian Penal Code.

(3.) The present appeal has been preferred on behalf of the appellant alone. Mr. Avishek Sinha, learned advocate appearing for the appellant argued that de-facto complainant (PW1) has not supported the case. Hence, genesis of the case has not been proved. Although eyewitnesses claimed that the appellant had assaulted the victim twice, medical evidence on record discloses a single injury improbabilising the manner and course of assault as narrated by the eyewitnesses. Eyewitnesses have inimical relationship with the appellant due to property dispute. The incident occurred in the portion of bastu land occupied by the appellant upon the deceased and his wife trespassing into such portion of the land. Hence, the prosecution case has not been proved beyond reasonable doubt and the appellant is entitled to an order of acquittal.