MOMIN MONDAL Vs. STATE

JUDGEMENT

(1.) Criminal Appeal No. 37 of 1984 is directed against the order of conviction of the appellant Momin Mondal under Sec. 304 of Part 2 I.P.C. and sentence of 4 years R. I. Passed by the learned Sessions Judge, Murshidabad in Sessions Trial No.2 of November, 1977. The appellant along with 3 other accused (MahasinMondal, Golam Mondal and Bhelu Mondal) who have since been acquitted, was charged under Section 302/34 IPC for committing the murder of Johoruddin Karikar on or about 23rd April, 1974 at Jitpore, P.S. Domkal in the district of Murshidabad. Only the present appellant was convicted at the said trial and sentenced as stated hereinbefore. The facts of the case are as follows: - Jahuruddin Karikar, resident of Fakirabad under Domkal PS obtained 3 cottahs of land in plot No. 5023 by purchase to the south of his garden which is situated to the west of his homestead. The said 3 cottahs of land was settled to one Santo Bewa who gifted it to her grand-son, Nur Bux, and Jahiruddin purchased the same from Nur Bux. To the contiguous west of the said 3 cottahs of plot is the house of accused/appellant Momin Mondal, his son in law, and acquitted accused Bhelu Mondal is the 'Khalato' brother of accused Momin. Immediately on his purchase, Jahiruddin made a khalian in the 3 cottahs of plot for thrashing paddy. The said 3 cottahs plot was surrounded by ails and fencing of jiala trees. On the 9th Baisakh, 1380 which was a Tuesday at about 7 or 7.30 A.M. Jahiruddin along with his two munishes, Nur Islam and Ajahar, went and his son, Afajuddin Mondal went to that 3 cottah plot for the purpose of building a hut there. Ajahar and Afajuddin then fixed a bamboo pole on that land. Nur Islam and Jahuruddin were then cutting a jiala tree on the eastern side of that plot. In the meantime, Afahar and Afajuddin went to their house to bring the measurement of the hurt to be constructed which they prepared by putting knots in the rope. Afajuddin then returned and found that there was a golmul going on. In the meantime accused Momin Mondal, rushed to the place and he was declaring that he would not allow Jahuruddin to cut the jiala tree. But, Jahuruddin replied as to why he would not cut his own tree. Then a big haichai was started. On hearing the row, Keramat, another son of Jahiruddin, Nakur Md. And Fakir Md., came to that place. Then the acquitted accused Mohasin Mondal, with a fala and a hensue in his hands, the acquitted accused, Golam Mondal and Bhelu Mondal, being armed with lathis rushed to that place. Then the accused, Momin Mondal, took the fala from the hand of Mohasin and struck it on the right side of the abdomen which was the right side of the back of Jahiruddin. On being struck Jahiruddin fell down with bleeding injury on his person. Mohasin Mondal then brought the fala from the abdomen of Jahiruddin. Then the acquitted accused Bhelu Mondal and Golam Mondal then struck Afajuddin with lathis on the left side of his shoulder and back. After assaulting, all those persons fled away to their house. Then Afajuddin made arrangement for a bullock-cart to take his father to the hospital. But, when they carried his father to the bullock-cart and went a few steps, Jahiruddin on the land where the incident took place, Afajuddin rushed to Domkal P.S. and reported the whole incident to the police officer and recorded the FIR on 23.4.74 at about 8.45 A.M. S.I., Benoy Krishna Debnath, OC of Domkal PS, recorded the FIR on the statements of Afajuddin and started Domkal PS Case No.16 dated 23.4.74 under Sections 324, 304/34 IPC and he himself took up investigation of the case. He immediately proceeded to the place of occurrence and reached Fakirabad at about 10.30 AM. He found the dead body on plot No. 5023 and held inquest on the deadbody in presence of witnesses, and then sent the deadbody for post mortem examination to Berhampore morgue through constables Raman Roy and Baijnath Singh. He then prepared a sketch map of the place of occurrence with an index. He seized some blood stained each and controlled earth from the place where the deadbody was found lying. He prepared seizure list in carbon process. On that date he examined Ajhar Sk, Nur Islam Sk, and Keramat Karigar. He then tried to examine the other witnesses, but none was found available on that date. He tried to apprehend all the accused persons but could not. He arrested only the acquitted accused, Mohasin Sk at the thana who had gone to the thana in the afternoon. He examained other witnesses subsequently. He seized the sale deed executed by Nur Bux in favour of Jahiruddin Karigar on 22.5.75 on production by the complainant Afajuddin and took charge of the same under seizure list. Thereafter, on completion of investigation, he submitted charge sheet against the accused person on 14.7.74.

(2.) The defence of the accused persons, as gathered from the trend of cross examination of the prosecution witnesses and also the statement made under Sec. 313 Cr. PC, is that the accused persons are all innocent and have been falsely implicated in this case. The specific defence of accused Momin Mondal and Mohasin Mondal, is that Jahiruddin, Afajuddin, Keramat, Nur Islan and Ajahar on taking dao, axe, falas and lathis came to their land and attempted to raise a hut there, that both of them protested and told them that they would not allow the hut to be constructed on their own land, that then Jahiruddin told Nur Islam to cut the tree, that then they forbade Nur Islam, that then Afajuddin rush to the house and brought a fala and a hensue, that then Jahiruddin struck Momin with a lathi and Afajuddin threw the fala aiming at Momin. But, it accidentally hit Jahiruddin and he fell down and then Afajuddin rushed to Mohasin to assault him and Mahasin caught hold of the hensue, that there was scuffle as a result of which the hensue hit the forehead of Afajuddin. The specific defence of the acquitted accused Golam Mondal and Bhelu was that they were not present at the time of the alleged incident and they had been falsely implicated in this case.

(3.) In order to bring home the charge against the accused person, the prosecution has examined P.W.1 Afajuddin Karikar, P.W.2 Nur Islam, P.W.6 Fakir Md., P.W.7 Keramat Krikar another son of Jahiruddin, and P.W.8 Nukur Md., who according to the prosecution are the only eye witnesses of the occurrence. Of them PW 2 Nur Islam has been declared hostile by the prosecution, PW 3 Doctor P. K. Sen held the post mortem examination on the deadbody of Jahiruddin Mondal on 24.4.74 PW 4, Doctor Ajit Kr. Mondal examined the injuries of Afajuddin Mondal, PW 1 on 23.4.74 at about 11 am. PW 5 Ismail Haque is the seizure list witness. PW 9 Haradhan Dhar and PW 10 Keramatulla Biswas have been produced to prove the certified copy of the sale deed (Ext.2), by which Jahiruddin Mondal purchased the 3 cottahs of land which was the place of incident according to the prosecution. PW. 11 BenoyKr. Debnath is the investigating officer.