MONIRUL MOLLA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Appeals are directed against judgment and order of conviction and sentence dtd. 25/8/2014 and 26/8/2014 passed by the learned Additional District and Sessions Judge, 2nd Court, Tamluk convicting the appellants for commission of offence punishable under sec. 302/34 of the Indian Penal Code and sentencing Monirul Molla to suffer imprisonment for life till his death and to pay a fine of Rs.10,000.00, in default, to suffer simple imprisonment for another three years and Jiarul Molla @ Jiarul Ali Molla to suffer imprisonment for life and to pay a fine of Rs.5,000.00, in default, to suffer simple imprisonment for two years and six months and further convicting Jiarul Molla for commission of offence punishable under sec. 25(1-A) and 25(1-B) of the Arms Act and sentencing him to suffer imprisonment for five years and pay a fine of Rs.3,000.00, in default, to suffer simple imprisonment for three hundred days for the offence punishable under sec. 25(1-A) of the Arms Act and further to suffer imprisonment for three years and pay a fine of Rs.2,000.00, in default, to suffer simple imprisonment for two hundred days for the offence punishable under sec. 25(1-B) of the Arms Act. Sentences imposed on Jiarul Molla to run concurrently. Prosecution case:-

(2.) Prosecution case as alleged against the appellants are as follows: On 10/11/2011 at 7 a.m. Monirul Molla had contacted a driver, namely, SanjayMondal (P.W. 1) who belonged to an adjacent village, for the purpose of visiting Digha in his car along with his mother and wife. Sanjay Mondal agreed to such proposal. Around 7 p.m. he went to village Kataliya and Monirul and another companion boarded the vehicle. The other person got out of the vehicle and they proceeded. Thereafter, Monirul stated his mother would not go for the trip but a lady who was introduced as the wife of Monirul boarded the vehicle. Monirul and the lady sat in the rear of the vehicle whereas the other person who was referred to as Jiarul sat beside Sanjay. Around 9:15 p.m. they reached Kolaghat and had a dinner in a hotel which was situated opposite to hotel Ser-e-Punjab. Thereafter, they again proceeded on their journey. After 15-20 minutes, there was a sudden feud inside the car. Sanjay felt irritation in his eyes and some liquid drops fell on his left hand which caused burning sensation. When he raised alarm, Jiarul who was sitting beside him, put a gun to his head and threatened him to proceed. He proceeded for sometime and upon reaching an island he somehow turned around and proceeded towards Mecheda. At that time Monirul again abused the lady and started assaulting her. When they reached near Ser-e-Punjab Sanjay saw few vehicles and to save his life he tried to stop the car but the car fell into a drain. Sanjay ran out of the car shouting "dakat dakat". Hearing commotion Tarlok Singh, cashier of Ser-e-Punjab Hotel rushed to the spot and saw two persons running away from the vehicle. He sent intimation to Kolaghat Police Station which was diarised by duty officer Dipak Chakraborty (P.W. 24). Pursuant to intimation, the then Officer-in-Charge, Basukinath Banerjee (P.W. 23) came to the spot along with his force. He found a dead body of a lady with severe acid burn injuries inside a Scorpio vehicle. He found a firearm on the seat of the vehicle. He recorded the statement of Sanjay which was dispatched to the police station through Constable Asit De (P.W. 22) and Kolaghat Police Case No. 313 dtd. 11/11/2011 under sec. 326/302/34 and 25/27 Arms Act was registered against Monirul Molla and another. In the meantime, inquest was made over the dead body and the vehicle along with a firearm and other articles were seized. Investigation of the case was entrusted to Kashinath Chowdhury, P.W. 25. On the next day he went to Kashipur Police Station, under South 24-Parganas, to investigate the first information report. On interrogation he found the identity of the deceased. He examined her family members including her brother (P.W. 9). Body of the deceased was identified by the said witness on 13/11/2011. Statement of Sanjay Mondal was recorded under sec. 164 of the Code of Criminal Procedure. He arrested Monirul Molla and filed charge-sheet showing Jiarul Molla as absconder. Subsequently, Jiarul was arrested and put on trial. Charges were framed under sec. 326/302/34 and 25(1A) (IB) of the Arms Act against the appellants. They pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 25 witnesses and exhibited a number of documents. Defence of the appellants is one of innocence and false implication. In conclusion of trial, trial Judge by the impugned judgment and order dtd. 25/8/2014 and 26/8/2014 convicted and sentenced the appellants, as aforesaid. Arguments at the Bar:-

(3.) Mr. Rahman appearing for Monirul Molla argued that the evidence of P.W. 1, Sanjay Mondal, is unreliable. His deposition in Court suffers from both embellishments and contradictions. His behavior in the course of the incident is most unnatural. It is not explained how he could turn the vehicle when Jiarul has put up a gun in his head. P.W. 7, mother of the owner of the vehicle stated Sanjay telephoned her around 10:30-10:45 p.m. and informed he was in danger. It is unclear how Sanjay could have contacted her in the course of the incident. P.W. 1 also admitted he was in the police station for three days till he was sent to the Magistrate for recording statement under sec. 164 of the Cr.P.C. Hence, the witness was under the influence of the police and his evidence ought not to be believed. It is further argued there is a three day delay in sending first information report to Magistrate which raises doubt with regard to the truthfulness of the prosecution case. No customer of Ser-e-Punjab hotel was interrogated. P.W. 3, the manager of the hotel did not corroborate P.W. 2, the cashier, that two persons were seen running away from the car. Name of the accused persons had not been disclosed by P.W. 1 to the medical officer, P.W. 16. Motive for commission of the crime is stated for the first time in Court. Manner of the incident as disclosed by P.W. 1 is at variance to the F.I.R. or earlier statement of the case. No fingerprints were collected from the vehicle nor was F.S.L. report with regard to articles seized from the vehicle placed on record. Identification of Monirul by P.W. 8 for the first time in Court does not inspire confidence. Hence, prosecution case is riddled with improbabilities and inconsistencies and ought not to have been believed.