UTPAL MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Both the above noted death reference and criminal appeal are being dealt with and disposed of by this judgment as they arise out of the same judgment of the Addl. Sessions Judge, 1st Court, Howrah passed in Sessions Trial No. III (October) 1994. It is a case of triple murder. The trial Court by its judgment dated 17/12/98 convicted the appellant Utpal Mondal under section 302 IPC for murder of three persons namely, Smt. Padmarani Mondal, her son Soumen Mondal alias Patal aged about four years and her father-in-law Sudhir Mondal and by order dated 19/12/98 sentenced the appellant to death and also to a fine of Rs. 1,000/- i.d. to R.I. for six months for his conviction under section 302 IPC. Being aggrieved by the judgment and the orders of conviction and sentence, the appellant-accused Utpal Mondal has preferred the present appeal. The trial Court has also referred the case under section 366 Cr.PC to this court for confirmation of the death sentence. Both the death reference and the appeal are being disposed of together by this judgment as already noted above. It may be noted here that originally the trial Court framed charge against the accused Utpal Mondal under three heads, each under section 304 Part-I IPC for causing death of the respective victims. After the commencement of the trial at the conclusion of the examination-in-chief of P.W.1 Sachindra Mohan Mondal the trial Court, on the prayer of the prosecution, altered the charge to section 302 IPC in place of section 304 Part-I IPC. Briefly speaking the allegation against the appellant is that on 29th July, 1991 at about 7-00 a.m. in the morning he assaulted the aforesaid three victims with wooden 'tasla' (i.e. wooden bar used for bolting door from inside) in their house as a result of which Padmarani died soon after his removal to Uluberia Hospital whereas Soumen @ Patal died in the hospital two days later. Padmarani is the boudi (elder's brother's wife) of the appellant Utpal and Soumen is the son of Padmarani. The deceased Sudhir is the father of the appellant Utpal.

(2.) Ext. 1 is the FIR of the case. The FIR was lodged by P.W.1 Sachindra Mohan Mondal who is the husband of Padmarani and elder brother of the appellant Utpal Mondal. It may be mentioned here that appellant Utpal and his brothers are three in number. The eldest one is Murari Mohan, the second one is P.W.1 Sachindra and the youngest one is the appellant Utpal. In the FIR it is stated by P.W.1 Sachindra that his father divided the ancestral property amongst the three sons and each one was given one bigha land leaving two bighas of land for the father himself. It is stated in the FIR that Sachindra's father used to stay with him and on 28/7/91, Sunday at about 6-00 a.m. in the morning his elder brother planted paddy saplings in the field allotted to Sachin and there was an altercation between his father and the younger brother Utpal on the issue of replantation and at that time Padmarani, the wife of Sachin went to stop the quarrel but his elder brother Murari and his wife Depali Mondal made an attempt to assault her and that on 29.7.91 (Monday) in the morning a quarrel started between the wife of Sachin and the wife of the elder brother of the Sachin concerning the previous day's altercation and at that time Sachin told his wife to remain silent and went to field at 6-00 a.m. It is the further case in the FIR that while Sachin was working in the field at about 8-30 a.m. his cousin Kamal Mondal and Manabendra Sana (P.W.9) reported that at about 7-00 a.m. his younger brother Utpal Mondal assaulted with a wooden cudgel his wife Padmarani, his father Sudhir Chandra Mondal and also assaulted his son Soumen as a result of which all three were lying in injured condition and on hearing the same he immediately rushed to his house and saw that his wife Padmarani was lying dead with bleeding injuries with face downwards on the varandha of the bed-room of his father. It is also stated in the FIR that before the complainant Sachin arrived, his father and son were sent to the hospital and he learnt from Susanta Mondal (P.W.4), Rabin Mondal (P.W.6) and Rabindranath Polley (P.W.5) that Utpal expressed grief and said that he became excited and assaulted the three victims with a wooden cudgel and committed a crime, and also requested them to save him, and at that time the villagers compelled him to sit. The FIR was signed by P.W.1 Sachinda Mohan and it was scribed by P.W.10 Sukhen Mondal. It appears from the endorsements in the FIR that the FIR was received by S.I. A.K. Sam anta (P.W.15) at 9-50 a.m. while he had been camping at Moubasia Dakshinpara where the occurrence took place and then he forwarded the same to O.C. Ulubaria P.S. through A.S.I. Amal Singha Roy for starting a case under section 304/325/326 IPC and the same was received at the P.S. at 11-45 a.m. and the Ulubaria P.S. case No. 172 dated 29.7.91 was started under the aforesaid sections. In this connection it is also to be mentioned here that ext. 11 is the Ulubaria P.S. G.D. entry No. 1488 dated 29.7.91 which was lodged at 9-05 a.m. It is recorded in the said G.D. entry that one Samir Mondal and Mongalmoy Mondal of Moubasia came to the P.S. and informed that a serious tension was going on at Moubasia between Utpal Mondal and his father and others over the dispute of paternal property and death of wife of Sachin Mondal was caused. It is also recorded in the G.D. entry that on receiving that information, S.I. A.K. Samanta (P.W.15) S.I. J.N. Sarkar (since deceased), A.S.I. N. Dey and A.S.I. A.K. Singha Roy left for the P.O. along with constable No. 833. It has been submitted by the learned Advocate for the appellant that neither the said Samir Mondal nor Mongalmoy Mondal has been examined on behalf of the prosecution although Mongalmoy was cited as a witness in the charge sheet. It has also been submitted by him that even Kamal Mondal who has been named in the FIR has also not been examined on behalf of the prosecution although he was cited as a witness in the charge-sheet. It is however to be mentioned that in the FIR it is stated that Kamal Mondal and Manabendra Sana both reported to the P.W.1 Sachindra in the field about the incident. Although Kamal Mondal has not been examined, Manabendra Sana has been examined as a prosecution witness, being P.W.9. It is needless to mention that it is not absolutely necessary always that all the witnesses on a particular point must be examined by the prosecution.

(3.) We now proceed to look to the evidence of the prosecution witnesses examined in the case. From the evidence of P.W.1 Sachindra Mondal we get that he along with the members of his family used to reside in their house at village Moubasia within the P.S. Ulubaria and the members of their family included his wife and child, his elder brother Murari, Murari's wife (P.W.2) and two children, his younger brother Utpal (the appellant) and their father Sudhir Chandra Mondal as well as his jattuto dada (elder cousin brother), his wife and children. From him we also get that although adjacent to each other, Murari with his family used to live in the old two storyed house with Utpal, and Murari used to live in the ground floor and Utpal in the first floor. We also get it from him that there are three rooms in the ground floor of the said house and three rooms at the first and out of the six rooms two were in occupation of Murari and Utpal, while the remaining four were in the occupation of his cousin brother Himanshu Mondal and his family. P.W.1 Sachin says that their father used to stay with him in his family. We also get it from him that his father was aged about 70 years and formerly he was a teacher in Moubasia Kalitala Prathamik Vidyalaya and he retired from his service 10 years back. He says that the portion in which he lives is mud-built and the portion in which his father lived was a pucca-built house. In this connection it has to be noted here that Ext. 12 is the sketch map with index which was prepared by the police officer and which will give some idea about topography of the place. P.W.1 Sachindra says that on the date of incident i.e. 29.7.91 in the morning when he was about to go to the field for cultivation, a quarrel was occurring between Padmarani (his wife) and Depali Mondal (the wife of Murari). He further says that at that time his son Soumen @ Patal aged about four years was also in the house. He says that as he was about to leave for cultivation, he advised the two women not to quarrel and told them that after coming back from the field he would settle the matter. His further evidence shows that subsequently while he was cultivating in the field at about 7-30 a.m. his relations and close neighbours Manabendra and Kamal rushed to him and reported that his brother Utpal had assaulted and killed his wife Padmarani, his father Sudhir and his son Soumen, and all of them were lying in pool of blood and on hearing this, he rushed to his house and found that villagers Syamal Mondal (P.W.8), Kamal Mondal, Susanta Mondal (P.W.4), Rabin Polley (P.W.5) and others had detained Utpal and surrounded him so that he could not flee away. He says that he found that his wife Padmarani was lying in a pool of blood in front of the door of the room of his father and she was already dead. He further says that he also found that his father Sudhir Mondal was lying in a pool of blood on the stair-case in the house of Himanshu Mondal. His father was not in a position to speak and his son Soumen he says was lying in a pool of blood near his mother and was still screaming in pain. His evidence is that his father and son were removed to Uluberia Hospital but Padmarani was not removed as she was already dead. He says that 10/15 minutes after his removal to the hospital his father died and his son also succumbed to his injuries two days thereafter. He says that those who detained Utpal told him that they had seen Utpal assaulting the victim and they also stated that Utpal had confessed his cruelty before them. He further says that Utpal also confessed before him about his guilty in assaulting the three victims with a tasla. It has been criticised by the learned Advocate for the appellant that the persons who are said to have detained Utpal did not actually see assault by Utpal and therefore the evidence of Sachindra on the point is not true. In our opinion when an occurrence of the such a magnitude as happened in the present case takes place and different persons come to the place on hearing cries obviously in quick succession, every description of the occurrence by the different witnesses need not be tested on the envil of mathematical accuracy. It is needless to say that reasonable flexibility must be allowed to play in the matter of appreciating the description of the incident given by the witnesses in respect of an incident of this nature when innocuous variations about details are not unexpected even in normal circumstances. P.W.1 Sachindra says that at the house Tarapada Polley and Gangarani Mondal (P.W.3) stated before him what they had seen about the incident. It has been commented upon by the learned Advocate for the appellant that Tarapada has not been examined in this case although he was cited as a witness in the charge-sheet. However as we have seen Gangarani was examined as a witness. P.W.1 Sachindra says that Gangarani told him that she had seen accused Utpal assaulting his wife, his father and his son with a tasla and she also told him that after the assault the accused had thrown away and dropped the tasla in a nearby tank. Gangarani is the wife of Surath Mondal who is the cousin brother of P.W.1 Sachindra. P.W.1 however says that his injured father and injured son were removed to hospital almost immediately on his arrival at his house. He says that Depali (P.W.2) also stated to him that the accused Utpal had assaulted his wife, his father and son with a tasla. It may be mentioned here that P.W.2 Depali was however treated as a hostile witness by the prosecution. In his cross-examination P.W.1. Says that the viti (plinth) of Susanta is about 5/6 ft below the viti of P.W.1 From him we got that Hare Krishna Mondal and Dwarik were two brothers and P.W.1 is a descendant of Hare Krishna Mondal whereas Susanta is the descendant of Dwarik Mondal. He says that he found that Utpal was confined near the house of Susanta Mondal and police also saw Utpal. He says that Himanshu and his family were confined in a room, but he then says that he does not know and he cannot say if they were confined to save them from assault by crowd. He says that Murari's wife and Utpal also used to love his son Soumen @ Patal. They were all separate in mess.