Indira Banerjee, J.@mdashThis appeal filed by the three accused appellants is against a judgment and order dated 29th January, 2004 passed by the Additional Sessions Judge, 3rd Court, Bankura, in Sessions Trial No. 4(6) 93, arising out of Sessions Case No. 13(1) 1993 whereby the accused appellants have inter alia been held guilty and convicted of offence under Section 304 Part I read with Section 34 of the Indian Penal Code and an order of sentence passed on the same day, whereby the accused appellants have been sentenced to suffer rigorous imprisonment for 10 years each and to pay fine of Rs. 2,000/- each, in default of which they are to suffer further rigorous imprisonment for one year.
2. It is the case of the prosecution that on 21st December, 1991 the goats of the accused appellants ate up the brinjal plants of the family of the deceased, which led to an altercation between the accused appellants and the deceased.
3. The accused appellants assaulted the deceased with lathi, iron rod and they also assaulted his son Rasik Mondal. Both Rasik Mondal and the deceased were admitted in hospital, and on the following day the deceased succumbed to his injuries.
4. Pursuant to a written complaint lodged by the Prosecution Witness No. 10 at the Saltora Police Station, the police initially started a case against the accused appellants under Sections 143 read with Section 324 of the Indian Penal Code and after the death of the deceased, Section 304 of the Indian Penal Code was added.
5. About 13 witnesses have been examined on behalf of the prosecution. The defence has not adduced any oral evidence. The accused appellants have, however, been examined under Section 313 of the Criminal Procedure Code. The accused appellants have denied the allegations against them and have tried to suggest that the deceased died in a motor accident while he was going to the police station or to the hospital.
6. The 1st Prosecution Witness, Sonamoni Mondal, daughter-in-law of the deceased deposed that the accused appellants as well as Debakar Mondal, Bhanu Mondal, Panu Mondal assaulted her father-in-law on the head with a wooden bar. The accused appellant Amar Mondal dealt the blow. The other accused persons assaulted the deceased with a Tangi. She deposed that the incident had taken place on 3rd Poush at about 12 noon, 7/8 years ago. The dispute related to the destruction of plants by the goats of the family of the deceased.
7. This witness deposed that her sister-in-law Baisakhi Mondal protested, whereupon the accused Bhanu Mondal and Panu Mondal abused her in filthy language. Thereafter, the deceased went over to the adjacent house of the accused appellant to protest, whereupon the accused appellants Bhramar and Samar and Bhanu and Panu assaulted him. She deposed that her brother-in-law Rasik Mondal tried to rescue her father-in-law but Rasik Mondal was also assaulted by the accused appellant Bhramar, on his right hand.
8. This witness stated that her father-in-law, the deceased, had been assaulted by the accused persons in their own house which is next to the house of the deceased. There is a common courtyard which is divided by a partition. According to this witness her father-in-law Purna Chandra Mondal became unconscious as a result of the assault. He was taken to Saltora Primary Health Centre and then to the Bankura Hospital where he expired on the same night.
9. She stated that her brother-in-law had been treated at the Saltora Primary Health Centre. She stated that the accused persons were her brothers-in-law. She identified the accused. In cross-examination, she categorically denied the suggestion that her father-in-law, Purna Chandra Mondal, met with an accident when he was coming out of the police station.
10. The 2nd Prosecution Witness, Sankar Mondal, an acquaintance of the deceased stated that he had not seen the assault and had to be declared hostile by the prosecution.
11. The 3rd Prosecution Witness Gangadhar Mondal another acquaintance and neighbour of the deceased stated that the deceased died as a result of assault by the accused appellants Amar and Bhramar. He stated that he had not seen the others assaulting the deceased. According to this witness Amar assaulted the deceased with wood and Bhramar dealt blow on the deceased by a ''belcha''. The deceased fell on the floor as a result of the assault. In cross-examination this witness stated that the deceased was the father of his brother-in-law Suresh.
12. The 4th Prosecution Witness, Ranjit Patra, a constable attached to Saltora Police Station, deposed that he had accompanied the second officer of the police station, Debdas Roy, to village Chhatapathar, where a ''Mugur'' made of Neem wood was recovered from the house of the accused appellant Bhramar Mondal.
13. The 5th Prosecution Witness, Dhirendranath Patra, a constable attached to Bankura Police Station, deposed that on the date of the incident he was attached to Saltora Police Station. His officer had seized a ''Mugur'' made of Neem wood from the house of the accused appellant Bhramar Mondal. He identified his signature on the seizure list.
14. The 6th Prosecution Witness Nepal Ghose, brother of the wife of the deceased deposed that the deceased had gone to the house of Panu and Bhramar to protest because their goats had eaten up the brinjal plants of the deceased. Thereafter, Amar, Bhramar, Dibakar came out and Amar dealt a blow on the head of Purna Mondal with a ''Mugur'' after which Samar dealt a blow with a wooden Tamna. As a result the deceased fell down on the ground. Many persons came to the place of occurrence. The accused appellants Samar Mondal, Amar Mondal and Bhramar Mondal fled away from the place of occurrence. This deponent stated that Bhramar dealt a blow with wooden ''Mugur'' on the head of Rasik Mondal as a result of which Rasik Mondal was injured.
15. The 7th Prosecution Witness, a police witness deposed that he had received information of the incident and started the police case. He stated that he endorsed the investigation to Sub-inspector Bimal Das. His evidence is not material to prove the guilt of the accused.
16. The 8th Prosecution Witness, an acquaintance and neighbour deposed that his house was situated about 100-150 metres from the house of the deceased. This witness also deposed that Purna Chandra Mondal had been murdered on 1st Poush, 8/9 years ago in the noon. There was a dispute as the goats of Dibakar Mondal had eaten up the brinjal plants of Purna Chandra Mondal. A quarrel broke out between Bisakha on one side and Bhanu and Panu on the other side. The deceased asked them not to quarrel whereupon the accused appellants Amar, Bhramar, Samar and Dibakar attacked the deceased.
17. This deponent stated that the accused Amar had a ''Mugur'' in his hand with which he dealt a blow on the head of the deceased. Bhramar hit the deceased with the handle of a ''belcha'' and Samar dealt a blow with a rod on Purna Chandra Mondal''s back. The other accused persons held the deceased at the time of assault. After the assault the deceased fell down. This deponent further deposed that when the deceased was being assaulted his elder son Rasik Mondal went to rescue him, but Bhramar hit him with the said Mugur and injured his right hand. The accused persons thereafter ran away. The deceased was first brought to the Saltora Primary Health Centre from where he was taken to Bankura hospital. He died at Bankura Hospital.
18. The 9th Prosecution Witness, Bisakha Mondal, daughter-in-law of the deceased stated that the goats of Panu and Bhanu had eaten their brinjal plants. She approached Panu and Bhanu to protest after which a quarrel started amongst Panu, Bhanu and herself. Her father-in-law went to the house of Panu and Bhanu to protest whereupon the accused appellants Amar, Bhramar and Samar and Dibakar, Panu, and Bhanu assaulted her father-in-law. Amar dealt a blow with a wood on the head of the deceased. Bhramar dealt a blow with a Tamna on the head of the deceased. Samar hit the deceased with a rod on the waist. Dibakar, Panu and Bhanu assaulted the deceased by fists and blow. Her father-in-law fell down and senseless.
19. This deponent also stated that her husband Rasik had also gone to rescue her father, but the accused Amar hit him on his right hand and injured him. She stated that her father-in-law was taken to Saltora Primary Health Centre. The same night her father-in-law died at the Bankura Sadar Hospital.
20. The 13th Prosecution Witness, Rasik Mondal more or less reiterated what his wife, sister-in-law and others deposed. The 10th Prosecution Witness Balaram Mondal brother in-law of the deceased also reiterated what the others had stated.
21. The 11th Prosecution Witness was Dr. Harasundra Mahanti who had been the emergency medical officer at the Bankura Sadar Medical College and Hospital on the date of the incident. He deposed that while he was in emergency he had examined the deceased. He stated that the deceased was conscious, pulse was regular, pupils were slightly dilated. He was bandaged over the right elbow, there was swelling over the nose, but no swelling over the head. There was history of blood vomiting. The diagnosis was head injury. The patient was physically assaulted, as stated by the patient party, by Amar Mondal, Bhramar Mondal and Panubala Mondal.
22. This witness identified the injury report prepared and signed by him and also the admission ticket signed and prepared by him. In cross-examination he stated that it was possible that this type of injury might be caused by fall in an accident.
23. The 12th Prosecution Witness, Dr. J.P. Batabyal, who had held the post mortem on the dead body of the deceased, opined that the death was due to the effect of injuries ante mortem in nature. There was probability of external injuries. He opined that the injuries would not be caused by motor accident.
24. The 14th Prosecution Witness was the investigating officer, Debdas Roy, who was not an eyewitness and had no personal knowledge of what had transpired. His evidence is not very material.
25. The accused appellants were all examined under Section 313 of the Criminal Procedure Code. All of them denied the allegations that emerged in the evidence and they pleaded not guilty.
26. There is preponderance of evidence which establishes beyond reasonable doubt that the accused appellants, Amar Mondal and Bhramar Mondal caused the death of the deceased. There were eye witnesses. The evidence of the Prosecution Witness Nos. 1, 3, 6, 8, 9, 10 and 13 prove the guilt of the accused appellants, Amar and Bhramar. It is established that the accused appellant hit the deceased on the head with a ''mugur''. The accused appellant Bhramar hit the deceased with a ''belcha''.
27. Some of the other family members of the accused appellants also joined in the assault on the deceased, but there are discrepancies in evidence so far as the others are concerned. The learned Sessions Court rightly acquitted them, giving them the benefit of doubt.
28. However, all the relevant witnesses including eye-witnesses deposed that they saw the accused appellants Amar and Bhramar assaulting the deceased on his head. The medical evidence shows that the deceased died of head injury. There is no evidence of any motor accident as sought to be suggested in cross-examination of the prosecution witnesses. In fact, the doctor who conducted the post-mortem examination also opined that it was unlikely that the injuries were caused by any motor accident. The learned Court rightly convicted the accused appellant Amar and the accused appellant Bhramar.
29. As pointed out by Mr. Sanyal and rightly, the age of the accused appellant Samar Mondal was recorded as 23 years on 23rd July, 2013, when he was examined under Section 313 of the Criminal Procedure Code, which means that on the date of occurrence of the incident, this accused appellant was only 11 years of age. He was a juvenile entitled to the protection of the Juvenile Justice (Care and Protection) Act, 2006.
30. The conviction of Samar Mondal is without jurisdiction and unsustainable. The appeal of Samar Mondal is allowed and his conviction is set aside as also the sentence imposed on him.
31. The appeal of the other accused appellants that is, Bhramar and Amar Mondal is dismissed and their conviction and sentence is affirmed.
Sahidullah Munshi, J.
I Agree.
