Appeal against life imprisonment for murder. High Court upheld conviction under Section 302 IPC but observed appellant's rage at deceased's violence as extenuating circumstance for remission consideration.
Appeal dismissed; conviction and sentence upheld; remission to be considered with extenuating circumstances noted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE
Present:
The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Bivas Pattanayak
C.R.A. 395 of 2017
with
CRAN 3 of 2018(old CRAN 2257 of 2018)
Noor Mahammad Molla -Vs-
State of West Bengal
For the Appellant : Mr. Angshuman Chakraborty, Adv. For the State : Mr. Sudip Ghosh, Adv. Mr. Apurba Kumar Datta, Adv. Mr. Bitasok Banerjee, Adv. Heard on : 03.01.2022 Judgment on: 03.01.2022
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 17th August, 2016 and 18th August, 2016 passed by the learned Additional Sessions Judge, 5th Court, Barasat, North 24 Parganas in Sessions Trial No. 46 of 2015 arising out of Sessions Case No. 420 of 2015 under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and also to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for three months more.
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Prosecution case as alleged against the appellant is to the effect that on 01.07.2015 a salishi was held in the house of Golam Mostafa (P.W. 3) over a dispute between Oli Mohammad (P.W. 1) and his younger son, Din Mohammad, the deceased. In the salishi, Oli Mohammad was present with his wife. Din Mohammad demanded Rs.2,00,000/- from Oli over the sale of a property owned by the latter. Din Mohammad did not agree to the terms of salishi and left the salish angrily. Thereupon, there was a sound ‘o baba go’ . Rushing out of the room witnesses found that Noor Mohammad (the appellant herein), who is the elder son of Oli Mohammad, was repeatedly assaulting Din Mohammad with a kurul. As a result of such assault, Din Mohammad died. Noor Mohammad went to the police station with the blood stained kurul where he surrendered to the police. His blood stained wearing apparel and kurul were seized by the duty officer, P.W. 12. Over the incident, written complaint was lodged by Oli Mohammad (P.W. 1), resulting in registration of Rajarhat Police Station case No. 181 of 2015 dated 01.07.2015 under Section 302 of the Indian Penal Code. In conclusion of investigation, charge-sheet was submitted under Section 302 of the Indian Penal Code. Charge was framed and in the course of trial, prosecution examined 20 witnesses and exhibited a number of documents to prove its case. In conclusion of trial, learned trial judge by judgment and order dated 17th August, 2016 and 18th August, 2016 convicted and sentenced the appellant, as aforesaid.
Mr. Chakraborty learned advocate appearing for the appellant submits P.W.1, the informant, has not supported the prosecution case. No human blood was detected in the kurul as per FSL report. It is further argued that the appellant has been falsely implicated as there was pre-existing enmity
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between him and his deceased brother. In the alternative, it is argued that the incident occurred in course of a sudden quarrel and the appellant had acted in the fit of passion. Hence, conviction may be altered to one under Section 304 of the Indian Penal Code.
Mr. Ghosh, learned Counsel appearing for the State, argues that although P.W.1 resiled from his previous statement, other eye-witnesses namely P.W. 2 to 6 unequivocally stated that the appellant mercilessly assaulted the deceased with a kurul. Thereafter, the appellant surrendered before the police and the blood stained apparels as well as kurul were seized. Due to disintegration of sample, report of forensic expert was inconclusive. It is finally submitted there was no sudden and grave provocation and the appellant had acted in a cruel manner as would appear from the large number of injuries inflicted by him on vital parts of the body of the deceased as per post mortem report. Hence, the appeal is liable to be dismissed.
Din Mohammad, is the younger son of P.W.1 while the appellant is his elder son. Evidence has come on record that Din Mohammad had demanded a sum of Rs.2,00,000/- over sale of two cottahs of land by Oli Mohammad. He threatened his parents with a hasua. Over such dispute, a salishi was held between Din Mohammad and his father, Oli Mohammad in the house of Golam Mostafa (P.W. 3), brother of Oli Mohammad. Din Mohammad did not agree to the terms and left the room. Soon thereafter, there was a sound ‘o baba go’ . Thereupon, Golam Mostafa ( P.W. 3), his wife Mina Bibi (P.W. 2) and other neighbouring witnesses, that is, P.Ws. 4 to 6 came out and saw the appellant brutally attacking the deceased with a kurul.
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It is argued that P.W. 1 and other prosecution witnesses, namely, Kabiruddin Molla (P.W. 16) and Ms. Papia Bibi (P.W. 18), wife of the appellant, have not supported the prosecution witnesses. Oli Mohammad, the first informant, was also not declared hostile.
I have considered such submission in the light of the evidence on record. P.W. 1 deposed that Din Mohammad had demanded Rs.2,00,000/over sale of property. As he had failed to meet such demand, Din Mohammad threatened him with a hasua. He had to stay away from his home for three days. On the fateful day, a salishi was convened in the house of his brother, Golam Mostafa, where the appellant as well as Din Mohammad were present. Subsequently, Din Mohammad left the salishi in anger. Then, they heard a sound and came outside the house. He admitted his signature on the written complaint which had been scribed by P.W. 7 as per his instruction. P.W. 7, in fact, has proved the written complaint wherein P.W. 1 claimed to have seen the appellant assault the deceased. Analysis of the evidence of P.W. 1 in the backdrop of other evidence on record shows while substantially agreeing with the prosecution case, he kept silent with regard to the assault by the appellant, his elder son, upon his younger son, Din Mohammad. This fact, however, was narrated by him in the F.I.R. which is proved by P.W. 7.
Under such circumstances, I am of the opinion that silence of P.W. 1 with regard to the assault perpetrated by the appellant was prompted more out of his affection for the appellant who had sided with him and objected to the violent activities of the deceased but not out of truthfulness. Lack of support to the prosecution case from other hostile witnesses, namely, P.W. 16 and P.W. 18, is also of little consequence. These witnesses particularly P.W.
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18 who is the wife of the appellant tried to screen him from legal punishment but during cross-examination were wholly discredited by confronting them with their earlier statements to the police.
On the other hand, version of eye-witnesses 2 to 6 with regard to the role of Noor Mohammad in the murder is corroborated by his subsequent conduct of going to the police station with a kurul in blood stained apparels. P.W. 10, was the sentry of the police station initially intercepted him. Subsequently, P.W. 12, duty officer of the police station, seized the blood stained kurul and wearing apparels of the appellant under seizure lists being Exhibit 4/1 and Exhibit 5/2 respectively in the presence of an independent witness, P.W. 11.
During trial the appellant sought to wriggle out the aforesaid position by taking a highly improbable defence that he had been set up by his own father and had been asked to go to the police station with the kurul in hand. This would appear from his response to questions put to him under Section 313 of the Indian Penal Code. Such explanation is most improbable and untrue. Firstly, eye-witnesses have consistently deposed with regard to the role of the appellant in assaulting his brother with a kurul. Secondly, no evidence is forthcoming that the appellant was under any coercion from his father or others to go to the police station with the weapon of offence in hand. Thirdly, no suggestion was put to P.W. 1 or any other prosecution witness that he had been compelled to go to the police station on the instruction of his father as claimed by him during his examination under Section 313 of the Indian Penal Code.
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On the other hand, during trial his father (P.W. 1) made a desperate yet futile effort to screen the appellant by resiling away from his statement in the FIR. This conduct, on the part of the father of the appellant, renders highly improbable that he would compel his son to go to the police station with the kurul. In view of the aforesaid facts, it is clear after the incident, appellant had voluntarily gone to the police station with the blood stained kurul in hand which corroborates version of the eye-witnesses, P.Ws. 2 to 6 herein.
It is argued that the presence of human blood in the kurul has not been proved beyond doubt. It is true due to disintegration of sample no conclusive opinion with regard to presence of blood on the weapon of offence could be given by the FSL expert. However, evidence of P.W. 10 to 12 clearly shows that the appellant had come to the police station in blood stained wearing apparels with a blood stained kurul in hand. Blood was also collected from the place of occurrence by the investigating officer. In view of the aforesaid facts, I am of the opinion that inconclusive view of the forensic expert does not affect the credibility of the prosecution case.
Finally it is argued that the appellant had acted in a fit of passion and the conviction ought to be altered to one under Section 304 of the Indian Penal Code. No doubt, there is evidence that the deceased was a dishonourable person. He had threatened his father, P.W. 1 with a hasua as he was unable to hand over Rs.2,00,000/-. He had criminal antecedents and had also assaulted his own wife. Hence, the appellant bore grudge against the deceased and when the latter refused to agree to the terms of salishi the appellant had decided to end his life by repeatedly hitting him with a kurul. There is a fine distinction between motive to commit the crime and ‘sudden
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and grave provocation’ at the time of occurrence which prompts an accused to act in a violent manner.
Although evidence on record showing bad character of the deceased provides sufficient motive to commit the crime, there is nothing to show that the deceased was armed or had caused injury to anyone in the course of salish which amounted to a sudden and grave provocation justifying the murderous assault. On the other hand, evidence of eye-witnesses as well as post mortem doctor, PW 19 would show that the appellant had acted in a most cruel manner and had repeatedly assaulted the victim on vital parts of his body causing numerous chop wounds which resulted in his death. Under such circumstances, I am constrained to hold though the appellant may have had justifiable reasons to hate the deceased there was no sudden and grave provocation during the course of the incident which would prompt him to act in such a violent manner and inflict no less than ten chop wounds on vital parts of the body of the deceased causing his death. Thus, I am inclined to hold that the appellant intended to murder the victim and the case does not fall within any of the exceptions to section 300 IPC to alter the conviction to one under Section 304 of IPC. Conviction and sentence of the appellant is upheld.
I, however, observe appellant was enraged by the violent acts of the deceased against their own father. As a result he had committed the murder. Though the circumstances are not sufficient to alter the conviction of the appellant, they may be taken into consideration as extenuating ones for the purpose of remission. Hence, in the event the appellant upon completion of 14 years of actual imprisonment makes an application for remission of
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sentence before the appropriate authority in terms of section 433A Cr.P.C the said authority shall consider his prayer in the light of the aforesaid extenuating circumstances subject, however, to other relevant considerations including his conduct in the correctional home.
The period of detention suffered by appellant during investigation, enquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure.
The appeal is accordingly disposed of.
All connected applications are, accordingly, disposed of.
Copy of the judgment along with LCR be sent down to the trial court at
once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied
expeditiously after complying with all necessary legal formalities.
I agree.
(Bivas Pattanayak, J.)
(Joymalya Bagchi, J.)
tkm /sdas/cm /PA
2 issues framed by the court
Whether the appellant acted in a fit of passion due to sudden and grave provocation warranting a conviction under Section 304 IPC.
Whether the inconclusive forensic report regarding blood on the weapon affects the prosecution case.
5 provisions across 2 enactments
Noor Mahammad Molla
State of West Bengal
Joymalya Bagchi
Bivas Pattanayak
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
