The High Court allowed the appeal against murder conviction, finding the prosecution case weak on account of contradictions between earlier police statements and court testimony. The judges held the appellant was entitled to benefit of doubt and acquitted him.
Judgment of conviction and sentence set aside; appellant found not guilty; discharged from bail bond.
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:-
HON’BLE JUSTICE CHITTA RANJAN DASH
AND
HON’BLE JUSTICE PARTHA SARATHI SEN
C.R.A. No. 72 of 2006
With
IA No: CRAN 1 of 2006 (Old No. CRAN 450 of 2006) With
IA No: CRAN 4 of 2008 (Old No. CRAN 2440 of 2008) With
IA No: CRAN 5 of 2010 (Old No. CRAN 2044 of 2010)
Unush Mondal
-Versus-
The State of West Bengal
For the Appellant: Mr. Himanshu De, Sr. Adv. Mr. Navanil De, Adv. Mr. Rajeshwar Chakraborty , Adv. Mr. Srinjan Ghosh , Adv. Mr. Subhrajit Dey, Adv. For the State : Mr. Mr. Prasun Kumar Datta , Adv. Ms. Z. N. Khan, Adv. Mr. Md. Kutubuddin , Adv. Mr. Santanu Deb Roy, Adv. Last Heard on : 04.01.2023 Judgment on : 18.01.2023
2
PARTHA SARATHI SEN, J. : –
3
Horshed Mondal and Iskender Mondal some miscreants namely; Yunus Mondal armed with Ram dao, Tajem Sk. armed with musket, Taimuj Sk. armed with musket, Nazrul Mondal armed with musket , Sahajan Sk. armed with bomb, Pantosh Sk. armed with dao, Sakabat Sk. armed with bomb, Daud Mondal armed with ram dao, Mainuddin Mondal armed with ramdao, Ershed Mondal armed with ramdao,Choto Mondal armed with bomb,Jubbbar Mondal armed with musket, Ichhaque Mondal armed with musket, Jikir Mondal armed with musket, Attr Mondal armed with fala , Onimuddin Mondal and Boga Mondal armed with bomb, Kalo Mondal, taib Mondal, Asker Mondal and Anur Momdal armed with bomd, Sanur Mondal armed with bomb, Asraf Mondal, Jiarul Mondal armed with bomb, Morshed Mondal, Masad Mondal, Jagir Mondal , Jiyar Mondal, Soifikul Mondal, Ardin Mondal and many others started hurling bombs and chased his said son. It is the further version of the informant that in order to save his life his said son Abu Jamal took shelter in a mosque and at that time Yeeahoo Sk., Hyder Ali Sk., Alem Ali Sk. Abunachar Sk. Faijul Sk, Ohadali Sk. Taju Mondal, Asimuddin Sk. , Rahaman Sk. , Monjur Ali Sk. Chattar Sk. and many others reached at the said mosque to save his son and at that time he noticed that one Daud Mondal assaulted one Jamin Sk. by a sharp cutting weapon and Jubbar Mondal, Tajem Sk, Taimuj Sk. and Najrul Mondal fired towards his said son. It is the further version of the de facto complainant that one Choto Mondal and Murshed Mondal also hurled bomb towards the informant as well as at his associates and at that time his said son was dragged outside the
4
gate of the said mosque by Ershed Mondal and Mainuddin Mondal where the accused Unush Mondal, Daud Mondal , Mainuddin and Ershed started assaulting his said son by using Ram dao and as a result of such severe injuries his said son at about 7 a.m died at the spot and thereafter the said accused persons fled away after hurling bombs.
5
He was extensively cross-examined by the defence. He stated that the written complaint as lodged by him was scribed by PW5 as per his instruction. Interestingly he had stated in his cross-examination that he did not witness the incident on the relevant day and hour since he was at home.
6
further stated that at the end portion of the written complaint he voluntarily wrote that the F.I.R was written as per instructions of PW4 and he scribed such written complaint which was read over and explained to PW4 since PW4 was an illiterate person.
7
PW7 also disclosed the name of the assailants and their respective actions on the relevant day and hour. It is his version that his house is situated on the southern side of the mosque after a few houses.
PW7 was extensively cross-examined by the defence where he stated that he did not state to the I.O that Daud Mondal , Mainuddin , Ershed and Unush Mondal ( the appellant herein) chopped Abu Jamal Sk. He denied that no such incident took place at the P.O as stated by him. 13. PW8 is the brother of the victim who in his examination-in-chief disclosed that on the relevant day at about 6:30 /7 a.m he came out from his room after hearing hue and cry and noticed that the miscreants including the present appellant were chasing the victim and thereafter he narrated entire incident of murder of his bother which is in the same line to the versions of PW4 and PW6 and PW7. He further stated that he witnessed the entire incident from his house as the P.O is visible from his said house.
In his cross examination he stated that he disclosed to the I.O that the miscreants chased his elder brother up to the mosque and entered therein. It is his further version that the said incident took place for about 10 minutes and at that time his father i.e. PW4 was standing 10 cubits away from him. He denied all other suggestions as given to him by the learned advocate for the defence. 14. PW 9 in his examination-in-chief adduced the same line of evidence as testified by PW4, PW6, PW7 and PW8. It is his version in his examination-in-chief that on the relevant day at about 6/6:30 am he
8
heard hue and cry and thus he came out to the courtyard of his house and noticed as to how the victim was chased, dragged and murdered by the assailants including the present appellant.
In his cross-examination, he had also stated that for the first time he was disclosing the said incident in court and that he no talk with anybody during and after the said incident.
In his cross examination, he however stated that he did not disclose the names of the offenders to the I.O.
9
In his cross examination, he however stated that he cannot recollect as to whether he was examined by the I.O. or not and he did not discuss about the said incident with anybody prior to the day of his deposition.
In his cross examination, he however stated that he was interrogated by the I.O. at 11 A.M. on the relevant day though such deposition gets no support from the testimony of I.O(PW29).
In his cross examination, he however stated that he did not state the incident to the I.O.
In her cross examination she stated that on the day of her deposition, she was disclosing the incident before the Court for the first
10
time. She stated that she was examined by the I.O. but she could not recollect as to what she stated to the I.O.
In his cross examination, he however stated that he did not state the incident to the I.O. and for the first time he is disclosing the incident before the Court.
iv. Four sharp cut injuries over the right flanks from above downwards (a) 8”x2”x bone cut, (b) 1”x2”x bone cut, (c) 1”x1/2”x muscle deep, (d) 3”x1”x muscle deep. v. One sharp cut injury over the right thigh, lower thigh 3”x2” muscle deep. vi. One penetrated injury over the right side of the front of the chest-1” below the right nipple, 1” diameter with superficially skin burn i.e.; bomb blasting injury.
vii. One penerated injury situated 1” medial from the injurty no.6 1/2” diameter with superficial skin burn i.e.; also bomb blasting injury. Two metallic pellets and blood sample were handed over to the Escort.”
11
In his opinion, the death was due to shock and haemorrhage of the injuries mentioned above which were ante mortem and homicidal in nature.
In his cross examination, the said P.M. doctor has stated that he examined the deceased at 2 p.m. on 31.05.2001 and as per his observation the death might have caused about 40 years back.
In his cross examination, he denied all the suggestions as given to him by the defence counsel. In his cross examination on being asked,he gave detailed account as to what have not stated by the alleged eye
12
witnesses before him in course of their examinations under section 161 Cr.P.C.
13
been recorded by the I.O. at all. It is their further version that for the first time they are stating such facts at the time of recording of the testimonies before the Court.
Section 145 of The Indian Evidence Act, 1872 is as under:- “Cross-examination as to previous statements in writing .—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.1145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
“ Section 162 of The Code Of Criminal Procedure, 1973 is as under:-
162. Statements to police not to be signed: Use of statements in evidence.
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such
14
witness, but for the purpose only of explaining any matter referred to in his cross- examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to affect the provisions of section 27 of that Act.
Explanation.- An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.”
of the ocular prosecution witnesses as discussed above, it appears to us that the omissions on the part of the said prosecution witnesses to mention the names of the assailants and/or their role in the commission of crime before the I.O. tantamounts to material and significant contradictions which are definitely affecting the veracity and credibility of the said eye witnesses. It is to be kept into mind that this is a case of faction ridden village dispute where the chance of false implication and/or exaggeration cannot be ruled out.
15
I agree.
(Chitta Ranjan Dash, J.)
(Partha Sarathi Sen, J.)
3 issues framed by the court
Whether the prosecution evidence is reliable when ocular witnesses admit omitting assistance for the accused in statements to the police.
Whether the omission of material facts regarding the appellant's alleged participation in a murder from police statements amounts to significant contradiction.
Whether the appellant is entitled to the benefit of doubt due to criticisms in the prosecution's eye-witness testimony.
4 provisions across 3 enactments
Unush Mondal
The State of West Bengal
Chitta Ranjan Dash
Partha Sarathi Sen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Chitta Ranjan Dash and Partha Sarathi Sen
Parties & counsel
