SUBHASISH MONDAL @ BIJOY Vs STATE OF WEST BENGAL
Bench: SUDHANSU JYOTI MUKHOPADHAYA,V. GOPALA GOWDA
Case number: Crl.A. No.-001391-001391 / 2008
Diary number: 9534 / 2007
Advocates: RUTWIK PANDA Vs
AVIJIT BHATTACHARJEE
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REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1391 of 2008
Subhasish Mondal @ Bijoy ... Appellant
VS.
State of West Bengal ... Respondent
J U D G M E N T
V. Gopala Gowda, J.
This appeal is filed by the appellant–
Subhashish Mondal @ Bijoy, against the final
judgment and order dated 29.09.2006, passed by the
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High Court at Calcutta in Criminal Appeal No. 398
of 2003, whereby the High Court dismissed the
appeal of the appellant and upheld the verdict of
the trial court convicting him under Section 302 of
the Indian Penal Code (in short “IPC”) on the
charge of double murder of his brother and mother
and sentencing him to imprisonment for life and to
pay a fine of Rs.1,000/- and in default of payment
of fine, to undergo further simple imprisonment for
three months. The present appeal is filed urging
certain grounds and legal contentions, praying to
set aside the impugned judgment and order of the
High Court and to reverse the conviction and
sentence passed by the courts below.
2. The facts of the case are stated in brief. The
appellant, Subhasis Mondal was charged with the
murder of his elder brother, Debasis Mondal and his
mother, Bithika Mondal at their house in Kharagpur
town, based on the FIR filed by one Srinivas Rao
who used to reside in the quarter beside the
quarter of the victims. The trial court found him
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guilty for the double murder of his brother and
mother and sentenced him to imprisonment for life
under Section 302 of the IPC. Against the judgment
and order of the trial court, the appellant filed
an appeal before the High Court pleading innocence
and lack of evidence and prayed for reversal of the
conviction and sentence. The High Court dismissed
the appeal and upheld the verdict of the trial
court. Being aggrieved by the judgment and order of
the High Court, the appellant has filed the present
appeal.
3. The prosecution case giving birth to the
sessions trial was that the appellant, on the night
of September 1, 2001, had allegedly killed both his
elder brother and his mother at their railway
quarter No.2 D/2, Old Settlement, Kharagpur Town
and this fact of the gruesome murder of both the
victims came to light when an FIR was lodged by one
A. Srinivas Rao who was also a Railways Employee
and who used to reside in the quarter just beside
the quarter of the victims. Mr. Srinivasa Rao in
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his written complaint dated 1st September, 2001
alleged that he heard screaming sounds coming from
the next door quarter and so he, along with his
relatives and other neighbours went to quarter No.2
D/2 and found the dead body of Debasis, the brother
of the appellant and his mother, Bithika in a
precarious condition with serious injuries on her
person. Bithika was subsequently taken to the
hospital for treatment but she succumbed to her
injuries. On getting this information, the police
visited the place of occurrence and there, Mr. Rao
presented his written complaint about the murder
without any mention of the assailant as it was
still unknown. On receipt of the written complaint,
the case was investigated into and the police
collected evidence from which it was reasonably
felt that the appellant committed the murder of his
mother and elder brother and thus, a charge sheet
was submitted against the appellant under Section
302 of the IPC. The learned Additional Sessions
Judge framed charge under Section 302, IPC against
the appellant for murder of his mother and elder
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brother and the appellant pleaded not guilty to the
charge and claimed trial.
4. The prosecution examined in all 12 witnesses
which included A. Srinivas Rao and some of the
people of the locality, P.W 2 – Rupali Sen, the
sister of the appellant and his deceased elder
brother and daughter of his deceased mother, the
doctor who conducted the Post Mortem examination,
the doctor who examined the appellant soon after
his arrest by the Investigating Officer(I.O) and
the I.O himself. The learned trial judge after
considering the prosecution evidence, both oral and
documentary, and after hearing the contentions of
both the appellant and the State finally came to
the conclusion that the appellant coming from
Calcutta on 31st August, 2001 made his entry into
the quarter of Debasis in the night of September 1,
2001 and finding his mother and brother
defenceless, killed them both to take revenge since
Debasis got employment on compassionate ground on
the death of his father and the appellant was
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deprived of an employment opportunity. The trial
court reached this conclusion, mainly on the oral
testimony of P.W.2 Rupali Sen, sister of the
appellant and on several circumstances which was
gathered from both oral and documentary evidence of
the prosecution. The trial court on appreciation of
evidence on record held the appellant guilty of the
murder of his brother and mother under Section 302
of the IPC and sentenced him to life imprisonment.
5. The appellant appealed against the judgment of
the trial court in the High Court pleading
innocence, and submitted that there were no eye
witnesses to depose against the appellant and that
he should be acquitted. The High Court held that
there was sufficient material on record to lend
support to the conclusion of the trial court that
the appellant, feeling himself deprived of the job
of his father held a deep grudge against his mother
and elder brother and as he resided in Calcutta, he
perhaps came on 31st August, 2001 and on 1st
September, 2001, he entered into the room through
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the exit hole of the bathroom and thereafter again
escaped through the said hole and this was
corroborated by the oral testimony of P.W 2 –
Rupali Sen, and also from the circumstance that no
article was stolen, the door of the room was closed
from inside and the appellant himself received some
injuries due to scuffling and finally, the silver
chain of the appellant was recovered near the body
of the victims. Thus, all these circumstances
together clearly established the fact beyond any
reasonable doubt that it was the appellant who
killed his elder brother and mother on the night of
1st September, 2001. The High Court held that the
prosecution with the help of circumstantial
evidence, established a complete chain of events
that there was no scope to hold otherwise than to
lend support to the guilt of the appellant for the
commission of the gruesome double murder. The
appeal was accordingly dismissed and the orders of
conviction and sentence passed against the
appellant under Section 302 of the IPC by the trial
court were confirmed.
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6. The appellant had filed this appeal against the
same and the matter has come before us. The amicus
curiae appearing on behalf of the appellant, Mr.
Rutwik Panda has contended that the order of
dismissal of appeal and upholding the order of
conviction as against the appellant is manifestly
unjust and illegal as it is against the evidence on
record and that the judgment and decision of both
the courts below are based on surmises and
conjectures and are liable to be set aside. It was
further contended that the courts below ought to
have considered that there were glaring
discrepancies and contradictions in the evidence of
the prosecution witnesses making them unreliable
and unbelievable and their evidence was
insufficient and untrue. It was also contended that
this Court should acquit the appellant on benefit
of doubt and the question of improbability of the
involvement of the accused in the case on hand and
further, that the sentence imposed upon the
appellant is too severe.
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7. The learned counsel for the respondent-State,
Mr. Anip Sachtey has argued that although there
were no eye-witnesses to prove the involvement of
the appellant behind the gruesome double murder of
his mother and elder brother, the circumstances
taken as a whole would present only one hypothesis
pointing out the guilt of the appellant. He has
also contended that the door of the room where the
victims were murdered was locked from inside and
the murderer entered and exited through an exit
hole of the bathroom, and it is clear that only a
person having full knowledge of the quarter could
have entered and exited that way. Further, not a
single article was stolen and from the evidence of
P.W.2, Rupali Sen, the sister of the appellant, it
is clear that the appellant felt himself deprived
of the job of his deceased father which went to his
elder brother(the deceased) and so he held a long-
standing grudge against both his mother and his
elder brother. He contended that the appellant had
the motive of vengeance in committing this gruesome
double murder of his own mother and elder brother
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and the order of conviction and sentencing the
appellant must be upheld and there is no ground to
interfere with the order of conviction or sentence
handed to the appellant.
8. We have heard the rival legal contentions and
perused the evidence on record. We have to come to
the conclusion that the guilt of the accused has
been proved beyond reasonable doubt. The contention
that the conviction is based entirely on
circumstantial evidence with an incomplete chain of
events is not tenable. We will examine the evidence
on record. The evidence before us is that someone
entered and exited the quarter of the deceased
through an exit hole of the bathroom and the door
of the room in which the brother and mother of
accused was found, was closed from inside. The
investigation also revealed that a silver chain was
found at the scene of the crime, which the P.W.2
stated later on in her deposition that it belonged
to her, and the accused had taken that silver chain
with locket of Goddess Kali from her prior to the
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occurrence. She identified the silver necklace
lying on the floor by the side of the dead body of
Debasis, her elder brother and also said that he
put a locket of Shiva on the said chain later on.
She further stated on record that her brother, the
accused used to mix with antisocial elements and
was addicted to wine and on account of this, their
mother was not inclined to give the service of
their deceased father to the accused but instead
opined that the employment on compassionate ground
be given to the elder brother, Debasis and that if
it is given to the accused, then he will be
spoiled. The complainant, P.W 1, A. Srinivasa Rao
has deposed stating that he found Debasis in a pool
of blood and his mother, Bithika in a pool of blood
in the bathroom. He also stated that he found one
‘shil’ (iron slab), one silver chain with locket
and one railway ticket, and four buttons.
9. The P.W 12, the Investigating Officer,
Mr. Mallick, the S.I. of Police attached to
Kharagpur Police Station deposed that he found the
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dead body of Debasis, the elder brother of the
accused in a pool of blood and was informed that
his injured mother was sent to the hospital. He
seized one silver chain with lockets of Goddess
Tara and God Shiva, and other articles like ‘shil’,
‘nora’, blood stained mat, chappal, button etc
under a seizure list prepared and signed by him
(marked as Exs. 2/2 and 3/1). He further stated
that he arrested the accused at Subhaspally on his
way to his sister’s house (P.W 2, Rupali Sen) and
that he found some scratch marks and injuries on
his body which was later examined by the doctor,
P.W. 11, who opined that the injuries were caused
due to scuffling with another person and could have
been inflicted if the accused was an assailant and
the victims tried to save themselves from his
assault. Legature marks on the neck may be caused
to the assailant if the victim had dragged the
assailant after pulling the chain which was put on
by him at his neck. P.W. 8, the Medical Officer who
examined the body of Debasis, the elder brother of
the accused stated in his evidence that the
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injuries may be caused by incriminating substance
such as ‘nora’, which was recovered from the scene
of the crime.
10. From the evidence of the witnesses discussed
above, it is apparent that the accused had a clear
motive to have committed the brutal murder of his
elder brother and his mother and the circumstances
point to the guilt of the accused. He held a strong
grudge against his mother and elder brother as his
mother had given the name of his brother for the
job of his deceased father instead of his name.
The motive of vengeance is established and in cases
in which only circumstantial evidence is available,
motive assumes a great importance. In the case of
Bhagwan Dass v. State (NCT of Delhi)1, this Court
citing the case of Wakkar v. State of U.P.2 held
that in cases of circumstantial evidence, motive is
very important, unlike cases of direct evidence. In
the case at hand, it is evident that the
prosecution case that the motive of the accused in
1 (2011) 6 SCC 396 2 (2011) 3 SCC 306
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killing his elder brother and mother was out of
vengeance has to be accepted. The trial court has
stated that it was crystal clear that there was a
family feud between the accused and the deceased
over the service in the railway workshop on the
death of their father.
11. The accused was arrested on the same day of the
occurrence, when he was on his way to his sister’s
house. When charged with the offence under Section
302 of the IPC, the accused pleaded his innocence
and made one solitary statement that everything is
false. There was no attempt of explanation of
circumstances or plea of alibi on the part of the
accused. The counsel for the accused simply pleaded
that the accused be acquitted on the principle of
benefit of doubt and that there is no chain of
circumstances that can lead to the hypothesis that
the accused is guilty of the murder of his elder
brother and mother. The judgment of this Court in
the case of Harivardan Babubhai Patel v. State of
Gujarat3 speaks of this very aspect of a case 3 (2013) 7 SCC 45
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wherein the accused has merely denied his guilt and
failed to give any explanation under Section 313 of
the CrPC of the incriminating circumstances against
him. The relevant portion is extracted below,
“28.Another facet is required to be addressed to. Though all the incriminating circumstances which point to the guilt of the accused has been put to him, yet he chose not to give any explanation under S.313 of the CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances... In the case at hand, though a number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him.”
12. In the present case too, the accused has simply
entered a plea of innocence. No other explanation
has been offered by the accused in spite of the
incriminating circumstances that pointed to his
guilt. It is our view that this is a suspicious
facet of this case, the mere denial of guilt on the
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part of the accused. This, along with the fact that
he was seen loitering around after the occurrence
and the silver chain that he took from his sister,
P.W. 2, was found at the site of the murder all
point to the guilt of the accused. His motive of
vengeance as he was angry at being denied his
father’s job led to him murdering his elder brother
and mother. It is also on record that he was
addicted to wine and mixed with anti-social
elements. Further, a railway ticket was found by
the complainant, P.W.1, A. Srinivasa Rao for the
date of 31st August, 2001 from Howrah which
presumably belonged to the accused as he lived in
Howrah and the murder happened in Kharagpur. All
these circumstances which form a reliable chain of
events proved the hypothesis that the accused is
guilty of the gruesome murder of his family - his
elder brother and his mother.
13. For the aforesaid reasons we sustain the
conviction of the appellant-accused under Section
302 of the IPC and sentencing him for life
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imprisonment as awarded by the trial court and
upheld by the High Court. We do not find any merit
in the appeal and it is hereby dismissed.
………………………………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
………………………………………
………………………………J. [V. GOPALA GOWDA]
New Delhi, November 21, 2013
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