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2007 DIGILAW 256 (CAL)

BHAGABAN DAS v. STATE OF WEST BENGAL

2007-04-04

SADHAN KUMAR GUPTA

body2007
S. K. GUPTA, J. ( 1 ) THIS appeal has been preferred the Judgment and order of conviction as passed in Sessions Trial No. 3 (8)/87 by the learned Additional Sessions Judge, Coochbehar wherein he convicted the appellant Bhagwan Das for the offence under section 304 Part-11 of the IPC, appellant Sunil Das for the offence under section 324 of the Indian Penal Code and appellant Jogesh Das for" the offence under section 342 Indian Penal Code. ( 2 ) THE fact leading to the said Sessions Trial is that on the basis of the First Information Report dated 14-6-1983, a case under sections 148/326/304 Part-I /342/149 Indian Penal Code was started against the accused persons. It was alleged in the First Information Report that the accused persons after forming an unlawful assembly at Dodeyarpar and being armed with deadly weapons, in prosecution of their common object assaulted and caused injuries to one Amulya Das and his sons. It is the specific case of the prosecution that accused Bhagwan Das threw an arrow which hit the chest of Amulya Das. Accused Sunil Das assaulted Gouranga, Das with a 'da' and accused Srikanta Das also assaulted Gouranga Das, on his left cheek by a danger. It is the further case of the prosecution that all the accused persons at the relevant time illegally confined Bhobotosh Das in the house of Jogesh Das for giving marriage of Manju Das forcibly with said Bhobotosh Das. ( 3 ) ON 14-6-1983 at about 21-55 hours one Amulya Chakraborty of village Dodeyarpar informed the Officer-in-Charge, Kotwali Police station over telephone regarding the incident. On the basis of the said telephonic message, Kotwali Police Station G. D. entry No. 690 dated 14-6-83 was diarised. On receipt of the message, the Officer-in-Charge informed the mobile officer, A. S.. , Adhir Roy with the direction to rush to the spot to work out the information. Said ASI went to the village and brought Jogesh Das, Manju Das and Bhobotosh Das under arrest to the Kotwali Police Station. There Bhobotosh Das submitted a written complaint stating the fact leading to the incident. On the basis of the said Statement, Kotwali Police Station Case No. 21 dated 14-6-1983 was started. Said ASI went to the village and brought Jogesh Das, Manju Das and Bhobotosh Das under arrest to the Kotwali Police Station. There Bhobotosh Das submitted a written complaint stating the fact leading to the incident. On the basis of the said Statement, Kotwali Police Station Case No. 21 dated 14-6-1983 was started. Similarly, Manju Das made an oral complaint to the officer-in-Charge, Kotwali Police Station which was reduced in writing and on the basis of that, Kotwali Police Station case No. 22 dated 14-6-1983 was started against Bhobotosh Das. Both the cases were investigated and after investigation charge sheets were submitted in both the cases against the respective accused persons. On the basis of the case No. 21 dated 14-6-1983, as started by Bhobolosh Das, present sessions Trial was started. On the other hand, on the basis of the kotwali Police Station Case No. 22 dated 14-6-83 which was started at the instance of Manju Das another Sessions case being No. 27 of 1987 was started against the Bhobotosh Das. It appears from the certified copy of the Judgment, which has been marked as Exhibit-17 in connection with this case, that after full trial Bhobotosh Das was acquitted, so far as said case was concerned. It may be pointed out here that in the said case it was the allegation of Manju Das that Bhobotosh on the false promise of marriage started cohabiting with her and when, as a result of that, she became pregnant, Bhobotosh Das administered some medicines and compelled Manju to consume the same and in the process there was abortion. But in the said case this, allegation could not be proved and as such Bhobotosh was acquitted. ( 4 ) BE that as it may, so far as the present case is concerned, it appears that it is also the prosecution case that there was trouble in between the parties over the alleged relationship of Bhobotosh with manju. It is the case of the prosecution that on the date of incident bhobotosh was forcibly lifted to the house of Jogesh Das, the father of manju Das and there all the accused persons tried to arrange for a forcible marriage in between Manju and Bhobotosh. When Amulya Das. It is the case of the prosecution that on the date of incident bhobotosh was forcibly lifted to the house of Jogesh Das, the father of manju Das and there all the accused persons tried to arrange for a forcible marriage in between Manju and Bhobotosh. When Amulya Das. the father of Bhobotosh Das and others came to the house of Jogesh das for the purpose of rescuing Bhobotosh from their clutches, at that time they were assaulted. It is the specific case of the prosecution that during that trouble accused Bhagwan Das threw an arrow in order to kill Amulya Das and the said arrow struck on his left chest causing serious injuries. Amulya Das was admitted in the M. J. N. Hospital, coochbehar ultimately he expired. It is also the case of the prosecution that accused Sunil Das, Srikanta Das assaulted Gouranga Das by sharp cutting weapon and as a result of that he was seriously injured and admitted in the hospital. Prosecution has further claimed that other accused persons including Srikanta Das also took part in the asault and they also assaulted the wife and sons of Amulya Das causing injuries to them. On the basis of such allegation, the case was started before the learned Additional Sessions Judge where prosecution in order to establish its case examined 19 witnesses. In addition to the oral evidence, prosecution also relied upon some documentary evidences which have been marked as Exhibits in connection with this case. Defence also proved some documents in support of its claim that accused Sunil Das and Srikanta Das also sustained injury due to the incident. It is the specific case of the defence that Bhobotosh das developed an illicit relationship with Manju Das and as the villagers were annoyed over this relationship, they protested and detained Bhobotosh in the house of accused Jogesh Das. At that time amulya Das and his family members came there in an angry mood and started assaulting the immates of that house. When the villagers started shouting 'dacoits dacoits' then Amulya Das and his family members started running and when they were chased, at that time, someone threw the arrow which struck the left chest of Amulya causing injury to his person. When the villagers started shouting 'dacoits dacoits' then Amulya Das and his family members started running and when they were chased, at that time, someone threw the arrow which struck the left chest of Amulya causing injury to his person. The accused persons have claimed that ?they were not at all involved in the incident and they have been falsely implicated in connection with this case due to previous enmity. ( 5 ) THERE cannot be any dispute that the entire onus lies on the prosecution to prove the charges against the accused persons beyond any reasonable doubt. Prosecution is to prove that on that day the accused persons by forming an unlawful assembly and in furtherance of their common object assaulted Amulya Das resulting in his death and also causing serious injuries to Gouranga Das and they were also guilty of confining Bhobotosh in the house of Jogesh Das. I have already pointed out that prosecution in all has examined 19 witnesses to prove the charges against the accused persons. The learned Trial judge after considering the entire materials, as placed before him, was pleased to convict the appellant Bhogwan Das for the offence under section 304 Part-II of the Indian Penal Code. He was also pleased to convict accused Sunil Das for the offence under section 324 Indian penal Code and accused Jogesh Das for the offence under section 342 of Indian Penal Code. ( 6 ) IN his Judgment, the learned Trial Judge gave benefit of doubt in respect of accused Srikanta Das, Indra Mohan Das alias Dutta, abani Das and Manju Das and acquitted them. As accused Bhagwan das, Sunil Das and Jogesh Das were aggrieved by the order of conviction, so they have preferred this appeal on the ground that the learned Trial Judge was not at all justified in passing the order of conviction against them. It has been contended on behalf of the appellants that there is dispute regarding the actual place of occurrence which made the entire prosecution case doubtful. It has further been contended that the learned Judge failed to appreciate the statements as made in the First Information Report and also the fact that the prosecution failed to examine vital witnesses like Brojen chakraborty and Kalyan Chakraborty. It has further been contended that the learned Judge failed to appreciate the statements as made in the First Information Report and also the fact that the prosecution failed to examine vital witnesses like Brojen chakraborty and Kalyan Chakraborty. It is also the case of the appellants that the learned Trial Judge was not at all justified in not placing reliance on the statements as made by the doctors,. e. P. W. 8 and P. W. 15 so far as their noting in the injury report regarding the cause of the injury. That apart, the learned Trial Judge also failed to take into consideration the injuries sustained by accused Srikanta das and Sunil Das and the fact that prosecution failed to explain the reasons for such injury. While passing the Judgment, the learned Trial judge held that there was no unlawful assembly and for that reason he was pleased to acquit some of the accused persons. But at the same time he was pleased to convict the present appellants, although they also stand on the same footing with that of the other accused persons who have been acquitted. According to the appellants, the order of conviction as passed by the learned Trial Judge, so far as these appellants are concerned, is not at all sustainable in the eye of law and as such it should be set aside. ( 7 ) LEARNED Advocate for the appellants, at the time of argument, argued on all those points ,and contended that the order of conviction of the learned Trial Judge should be set aside. ( 8 ) ON the other hand, the learned Advocate for the State argued that the learned Trial Judge considered each and every point in accordance with law and thereafter he was pleased to pass the order of conviction. According to him there is no confusion regarding the actual place of occurrence. The learned Judge rightly considered the g. D. entry, which was received on that night in the police station, as the first information report and there is nothing wrong in the said decision of the learned Trial Judge. In addition to that, Mr. According to him there is no confusion regarding the actual place of occurrence. The learned Judge rightly considered the g. D. entry, which was received on that night in the police station, as the first information report and there is nothing wrong in the said decision of the learned Trial Judge. In addition to that, Mr. Mallick, learned Advocate for the State argued that the learned Trial Judge rightly disbelieved the statements of the doctors which have been recorded in the injury reports regarding the cause of the injury and in support of his decision, the learned Judge gave sufficient reasoning, and as such, this Court should not interfere into the said finding of the learned Judge. Regarding the claim of the defence that the injuries of the accused persons viz. Srikanta and Sunil were not explained by the prosecution, he submitted that the Trial Judge discussed the matter in detail and thereafter was of the opinion that those injuries were not of such a nature necessitating the prosecution to explain the same. According to him, the learned Judge rightly ignored those injuries with the observation that those were not of such a nature to sufficiently discard the prosecution case. So far as the claim of the appellant that although the learned Judge disbelieved the prosecution case of unlawful assembly and thereby acquitting some of the accused persons and as such he was not justified in not extending the benefit in favour of the present appellants, the learned advocate of the State submitted that in his Judgment the learned Judge observed that there was no unlawful assembly and pursuant to the common object of the said unlawful assembly, the alleged incident did not take place. ' according to him, the accused persons were individually responsible for the offence committed so far as the injured are concerned and thereby convicting them for their individual act. Mr. Mallick further submits that the observation of the learned Trial Judge in this respect appears to be perfectly justified and need not require any interference by this Court. According to him, in fact, the learned Judge imposed minimum punishment against the appellants, although the offences as committed by them are very serious in nature. Mr. Mr. Mallick further submits that the observation of the learned Trial Judge in this respect appears to be perfectly justified and need not require any interference by this Court. According to him, in fact, the learned Judge imposed minimum punishment against the appellants, although the offences as committed by them are very serious in nature. Mr. Mallick argued that as there is no scope of interference by this Court, so the order of conviction, as passed by the learned Trial Judge in respect of these appellants, should be confirmed and the appeal may be dismissed. ( 9 ) IT is the admitted position that the case was started against the accused persons on the allegation over the incident which took place on 14-6-1983. A confusion has been created in respect of the fact as to which documents should be treated as the first information report so far as the present case is concerned. It appears that on that night of 14-6-83, a telephonic message was received in the police station and for that a G. D. entry was recorded which has been marked as exhibit-2. In addition to that, it appears that when Bhobotosh along with Jogesh and Manju were brought to the police station then as per statement made by, Bhobotosh, the FIR was noted in the formal way and it has been marked as Exhibit -. It is the settled position that when a report regarding commission of a cognizable offence is received in the police station, then that information should be treated to be the first information report, as provided in the Criminal Procedure Code. As such, it must be said that the report which was received in the police station on 14-6-1983 in respect of the commission of the cognizable offence must be treated to be the first information report. The statement of Bhobotosh Das which was written in the police station afterwards cannot be treated to be the first information report, as done, so far as the present case is concerned. The learned Trial Judge, in my opinion, was perfectly justified in observing that the G. D. entry which was earlier in time and which disclosed the place of occurrence as well as commission of cognizable offence, should be treated as the first information report of the case. There is nothing wrong in his decision that Exhibit-1. The learned Trial Judge, in my opinion, was perfectly justified in observing that the G. D. entry which was earlier in time and which disclosed the place of occurrence as well as commission of cognizable offence, should be treated as the first information report of the case. There is nothing wrong in his decision that Exhibit-1. e. G. D. entry should be treated as the first information report of the case. ( 10 ) THE accused persons claimed that in the G. D. entry. e. Exhibit 2, it has been mentioned that the incident took place at Dodeyarhat and not at Dodeyarpar. As such, according to the defence, as there is clear discrepancy in respect of the place of occurrence, so the entire prosecution case is full doubt and same is liable to be disbelieved. It is true that in the Exhibit-1, the place of occurrence has been mentioned as Dodeyarhat. But from the evidence of the P. Ws it appears that the distance between the Dodeyarhat and Dodeyarpur is more than half kilometer. In this respect the evidence of the P. W. 16 Amulya chakraborty is most relevant. It is he, who informed the police station over telephone regarding the incident. He categorically denied the defence suggestion that he mentioned the place of occurrence as dodeyarhat. According to him, he mentioned the place to be dodeyarpar. It further appears that on the basis of the G. D. entry, P. W. 6, adhir Roy was directed to proceed to the locale. In his evidence, this p. W. 6, clearly stated that he went to Dodeyarpar to work out the information and not at Dodeyarhat. Apart from this, if we look into the cross-examination of the witness, then also it will appear that the defence also has practically admitted that the incident took place at dodeyarpar. It has transpired from the evidence on record that the houses of the accused persons are situated very near to the house of the deceased Amulya Das. We must not forget that over the incident accused Manju Das also lodged an FIR against the Bhobotosh Das and on the basis of the said FIR, a case was started against him. This FIR has been marked as Exhibit- 12, so far as the present case is concerned. We must not forget that over the incident accused Manju Das also lodged an FIR against the Bhobotosh Das and on the basis of the said FIR, a case was started against him. This FIR has been marked as Exhibit- 12, so far as the present case is concerned. In her FIR, Manju Das clearly stated that the occurrence took place in front of the house of Jogesh Das at Dodeyarpar. Under such circumstances, it is clear that there was a mistake on the pan of the recording officer in noting the name of the place of occurrence as dodeyarhat and not Dodeyarpar. The learned Judge, after considering all these things was pleased to reject this objection of the defence and held that the place of occurrence was Dodeyarpar, I find nothing illegal in the said observation of the learned Judge. ( 11 ) LET us now turn to the actual incident. It may be pointed out here that over the incident one Amulya Das was injured by an arrow on his chest by one Bhagwan Das while his son Gauranga sustained injuries on his person caused by some of the accused persons by sharp cutting weapon and all the accused persons were responsible for this, as they, at that time formed an unlawful assembly and in furtherance of the common object of the said assembly, they committed an offence and as such all the accused persons, being member of the said assembly should be held liable. In this respect, the evidence of the p. W. 1, P. W. 2, P. W. 3 and P. W. 4 are most important P. W. 1 is Bhobotosh das. He is the son of the deceased Amulya Das and the trouble started in between the parties over his alleged relationship with accused manju Das. P. W. 2 is Gauranga Chandra Das. He is one of the injured. P. W. 3 is Purna Bala Das, the wife of the deceased Amulya Das and P. W. 4 is Mihir Chakraborty. It appears that this P. W. 4, Mihir Chakraborty is a neighbour. He, in his evidence, clearly supported the prosecution case. According to him, accused Srikanta and Sunil assaulted gauranga Das by one 'dagger. ' He has further stated that accused bhagwan Das assaulted Amulya Das by throwing arrow. According to him, other accused persons also assaulted the wife of Amulya Das. He, in his evidence, clearly supported the prosecution case. According to him, accused Srikanta and Sunil assaulted gauranga Das by one 'dagger. ' He has further stated that accused bhagwan Das assaulted Amulya Das by throwing arrow. According to him, other accused persons also assaulted the wife of Amulya Das. The evidence of this witness remained unshaken even after the cross examination. Defence only gave suggestion to him to the effect that as he was rebuked by accused Abani Das for his alleged bad character so he deposed falsely in connection with this case out of grudge. But this defence suggestion has not been proved by adducing any cogent evidence. Even if, we admit this suggestion, then also it appears that the alleged enmity of this witness may be in respect of accused Abani das and not in respect of other accused persons. In respect of other mentioned here that this Abani Das has been acquitted by the learned court below. As such, under such circumstances, the evidence of this witness cannot be discarded, so fars as other accused persons are concerned. I have got no hesitation to hold that the learned Trial Judge was perfectly justified in placing reliance upon this witness. So far as p. W. 1, P. W. 2 and P. W. 3 are concerned, it appears that they had given vivid description regarding the incident in question. They categorically stated that accused Bhagwan Das injured Amulya Das by throwing an arrow which struck on his chest. P. W. 2 in his evidence, categorically claimed that he was injured by accused Sunil and Srikanta by dagger. Similarly, P. W. 3, the wife of the deceased also gave detail description about the incident and as to how her husband and son were injured by the accused persons. She has also claimed that she was also assaulted by the accused persons. The manner in which these witnesses had deposed against the accused persons certainly inspires confidence and in absence of any material it is not possible to discard their evidence. ( 12 ) DEFENCE has put forward a suggestion to the effect that when the P. W. 1, Bhobotosh Das was detained in their house over his illicit relationship with accused Manju Das, at that time Amulya and others came there and started assaulting them. ( 12 ) DEFENCE has put forward a suggestion to the effect that when the P. W. 1, Bhobotosh Das was detained in their house over his illicit relationship with accused Manju Das, at that time Amulya and others came there and started assaulting them. At that time, when the villagers raised hue and cry by shouting "dacoits dacoits", Amulya and others started fleeing that place and in the process someone from the said gathering threw an arrow, resulting in the injury of Amulya Das. This defence claim is confined in giving this suggestion only. No concrete evidence has been put forward. It is suggested that Amulya das at that time was running from the place of occurrence being chased by the public. If that is so, then in all probability he would have been hit by the arrow on his back portion and not in his chest. The defence in support of its claim has relied upon the statements of the P. W. 8 and p. W. 15 who are the doctors. It appears from the evidence of the P. W. 8, dr. Tushar Kanti Chanda and P. W. 15, Dr. B. K. Mallick that they in their evidence stated that Amulya informed them that he sustained injury being assaulted by 20/25 persons near over bridge at dodeyarhat. But I have already pointed out that this incident could not have been taken place at Dodeyarhat near the over bridge as claimed by the P. W. 8. It has transpired from the evidence on record that dodeyarhat is situated about half kilometer away from the house of jogesh Das. It is the defence case that while Amulya Das was running away, the villagers chased him and someone assaulted him by an arrow. If the defence version is accepted to be correct, then if Amulya started running for the fear of his life, then in all probability he would have taken shelter in his house which is nearby and not to run towards dodeyarhat over bridge. This shows the impossibility of this statement, as allegedly made before the doctor. That apart, if we look into the evidence of the P. W. 8 then it will appear that he categorically stated in examination in chief to the effect that "one penetrating injury on left second inter-coastal peuse caused by arrow which was found in side. This shows the impossibility of this statement, as allegedly made before the doctor. That apart, if we look into the evidence of the P. W. 8 then it will appear that he categorically stated in examination in chief to the effect that "one penetrating injury on left second inter-coastal peuse caused by arrow which was found in side. Patient was conscious but could not speak due to pain. " If that is the position, then it is unbelievable that Amulya Das made each statements before the doctors on the very night of his admission. That the injured Amulya Das sustained severe injury on his chest as he was assaulted by an arrow allegedly thrown by accused Bhagwan Das, has been well established from the evidence of the P. W. 1, P. W. 2, P. W. 3 and P. W. 4. We find nothing to disbelieve their statements in this respect. The medical evidence also supports that Amulya Das sustained such type of injury and the arrow was taken out from his body after operation and ultimately he died due to such injury. In this respect, it appears that the investigating officer recorded the statement of amulya Das in the hospital while he was alive, under section 161 Cr. PC. It is the admitted position that during investigation this Amulya das died. So the statement made by Amulya Das before the investigating officer was placed before he learned Trial Judge who admitted the same on the basis of provisions of section 32 of the Indian evidence Act being the statement made by a deceased regarding the cause of death. Undoubtedly, the statement was recorded by a police officer and it appears prima facie that the said statement under normal circumstances is inadmissible. But section 162 Cr. PC in express term excludes from its purview statements falling under section 32 of the indian Evidence Act. Statement of the deceased, to the police is admissible as a dying declaration, even if, death took place much later. When the statement of an injured is recorded under section 161 Cr. PC by the. O. , it becomes a statement relating to the cause of death of that man if he subsequently dies. In this respect I place my reliance on the decision reported in 1994 (1) Crimes page 966 (Budhi and Ors. v. State of Uttar Pradesh ). When the statement of an injured is recorded under section 161 Cr. PC by the. O. , it becomes a statement relating to the cause of death of that man if he subsequently dies. In this respect I place my reliance on the decision reported in 1994 (1) Crimes page 966 (Budhi and Ors. v. State of Uttar Pradesh ). So it appears that the statement, as made by amulya Das before the. O. during investigation, is very much admissible in evidence regarding the cause of his sustaining injury, as provided under section 32 of the Indian Evidence Act. In fact, the learned Trial Judge also considered this statement by observing that same is admissible in evidence as per provisions of section 32 of the indian Evidence Act. The finding of the learned Trial Judge in this respect, appears to be absolutely proper and I find no illegality whatsoever in this respect. So the statements of the P. W. 1, P. W. 2, P. W. 3 and P. W. 4 have been corroborated by the statement made by Amulya das, as recorded by. O. in connection with this case which has been marked as Exhibit-14. Those statements are clear proof to substantiate the prosecution claim that the accused Bhagwan Das actually injured amulya Das by throwing the arrow. In view of this clear evidence, in respect of the actual cause regarding the injuries sustained by Amulya das and at whose instance said injury was caused, I am of opinion that the evidence of those two doctors regarding the alleged statement of Amulya before them should not be given any credit. The evidence of these two doctors looses its value in view of such clear and reliable evidence of the eye witnesses as well as from the statement of Amulya das and it must be said that prosecution has been able to prove that it was accused, Bhagwan Das who actually caused the injury on the body of Amulya by throwing an arrow. The learned Judge, in my opinion, was perfectly justified in not placing any reliance on the statements of these two doctors so far this point is concerned. He is perfectly justified in giving credence to the evidence of the eye witnesses while rejecting the claim of the doctors in respect of the noting, as made by them in the injury report. He is perfectly justified in giving credence to the evidence of the eye witnesses while rejecting the claim of the doctors in respect of the noting, as made by them in the injury report. ( 13 ) THE appellants have further claimed that the prosecution failed to examine Brojen Chakraborty and Kalyan Chakraborty who are vital witnesses for proving the prosecution case. This Kayan Chakraborty who is the son of Brojen Chakraborty. As per evidence of the P. W. 1, bhobotosh Das it appears that he has claimed that he was taken away by the accused persons from the shop. According to him, Kalyan chakraborty was present in the said shop. So there cannot be any doubt that the evidence of this Kalyan Chakraborty is very important for proving the prosecution case. But it appears that summons were issued in the name of those witnesses. In spite of that they could not be produced during trial. Undoubtedly, it is a laches on the part of the prosecution. But that does not mean that due to such laches, the other ovewhelming and reliable evidence of the eye witnesses should be thrown away. It is correct that the P. W. 1, P. W. 2 and P. W. 3 are all close relations of the deceased Amulya Das. But there is no such law that the evidence of the relatives should not be believed at all, although they are believable in nature. That apart, as discussed above, it appears that the P. W. 4 is a disinterested witness and in his evidence he clearly supported the prosecution case and I find no reason to disbelieve his statement. The evidence of this P. W. 4 along with the evidence of the P. W. 1, P. W. 2 and P. W. 3 are sufficient proof to establish the prosecution case. As such, the learned Trial Judge was perfectly justified in observing that non-examination of this P. W. Kalyan chakraborty cannot be vital for the prosecution case in view of the overwhelming direct evidence that is available, so far as the present case is concerned. In this respect, he also relied upon the medical evidence which unmistakably shows that Amulya Das sustained an injury caused by an arrow. In this respect, he also relied upon the medical evidence which unmistakably shows that Amulya Das sustained an injury caused by an arrow. The cumulative effect of all these evidences leads us to the conclusion that Amulya died as a result of the injury caused by an arrow thrown by the accused Bhagwan Das. As such, the learned Trial Judge was justified in holding this Bhagwan Das guilty. ( 14 ) IT further appears that the learned Trial Judge convicted accused sunil for the offence under section 324 Indian Penal Code as he assaulted the P. W. 2, Gouranga Das by sharp cutting weapon like 'da'. The medical evidence clearly supports prosecution claim in this respect. Considering the nature of the injury sustained by Gouranga, learned Judge was of the opinion that an offence under section 324 of the Indian Penal Code has been made out and not an offence under section 326 Indian Penal Code. This finding of the learned Judge has not been challenged by the prosecution and as such I refrain myself from making any comment on this point. Be that as it may, from the evidence of the eye witnesses as well as from the Exhibit-14 it is very much clear that accused Sunil actually caused this injury to Gouranga. So the learned Judge was perfectly justified in convicting him on the basis of such evidence. ( 15 ) SO far as the other accused Srikanta is concerned, it appears that the learned Judge after perusal of the medical papers was of the opinion that there was room for doubt regarding the offence in question, as allegedly committed by the accused Srikanta Das and for that he granted benefit of doubt in his favour and acquitted him. I have already pointed out that prosecution did not challenge this finding of the learned Trial Judge and as such the validity of this observation of the learned Trial Judge cannot be considered by this Court in this appeal. ( 16 ) SO far as the accused Jogesh Das is concerned, it appears that the learned Judge was of the opinion that as it has been established that P. W. 1, Bhabatosh Das was confined in his house and he being the head of the family was responsible for the said illegal confinement, committed an offence under section 342 Indian Penal Code. It appears that the reasoning, as given by the learned Trial Judge in this respect appears to be cogent and I find no scope for interference to the said finding of the learned Judge. So the fact remains that the learned Trial judge convicted accused Bhagwan for the offence under section 304 part-II of the Penal Code and he convicted accused Sunil Das and jogesh Das for the offence under section 324 and 342 of the Indian penal Code respectively. So far as conviction of accused Bhagwan Das is concerned, the learned advocate for the appellant argued that the learned Judge was not at all justified in holding the accused Bhagwan das guilty for such offence. But I have already pointed out that there are overwhelming materials against this accused/appellant Bhagwan das. However, the learned Judge after considering the materials on record took a lenient view and observed that as accused Bhagwan had no intention to cause the murder of Amulya Das, so he should be convicted for the offence under section 304 Part-II of the Indian Penal code and not under section 304 of the Indian Penal Code. This finding of the learned Judge has not been challenged by the prosecution. In view of the materials available in the record, as discussed above, I am opinion that there is no scope for this Court to interfere into this finding of the learned Trial Judge. There is no doubt that Amulya Das died for this injury and from the evidence of the witnesses there cannot be any doubt that this Bhagwan Das actually was responsible for the death of the deceased. This finding of the learned Trial Judge cannot be said to be improper and illegal as claimed by the learned advocate for the appellants. The learned advocate for the appellants argued that from the evidence it appears that the Amulya Das died due to septic. In this respect, he drew my attention to the evidence of the P. W. 14 Dr. Santosh kr. Mitra,who conducted post-mortem examination on the dead body amulya Das. It appears that this witness opined that death of Amulya das took place due to shock and hemorrhage and due to septic which was the result of the injury sustained by him which was ante-mortem and homicidal in nature. Santosh kr. Mitra,who conducted post-mortem examination on the dead body amulya Das. It appears that this witness opined that death of Amulya das took place due to shock and hemorrhage and due to septic which was the result of the injury sustained by him which was ante-mortem and homicidal in nature. So from the evidence of this doctor, it appears that undoubtedly there was septic which was the result of the injury. So the fact remains, the injury was caused by Bhagwan Das by way of throwing an arrow which struck the chest of the Amulya Das causing serious injuries of his person. All the doctors have stated that those injures were sufficient to cause death of a human being. In addition to that, the doctor has stated that the patient died also as a result of the septic which developed on his body due to the injury. Simply because, there was spectic in the body of the deceased that cannot be a ground to say that he did not die as a result of the injury in question. The injury, as caused by the accused is the main cause for the death of the deceased. Subsequent septic on the body, due to this injury, only aggravated it, reaulting in the death of Amulya. So there cannot be any doubt that accused Bhagwan Das caused the assault on Amulya das which was in all probability like to cause death under normal circumstances. The learned Trial Judge was of the opinion that it could not be established that Bhagwan Das had from the very beginning, the intention to kill Amulya, so instead of convicting him for the offence under section 304 Indian Penal Code, the learned Judge was pleased to convict him for the offence under section 304 Part-II of the Indian penal Code. The decision of the learned Trial Judge appears to be absolutely reasonable and is the result of proper appreciation of mind. As such, I find no scope for interference into the said decision of the learned Trial Judge. The decision of the learned Trial Judge appears to be absolutely reasonable and is the result of proper appreciation of mind. As such, I find no scope for interference into the said decision of the learned Trial Judge. ( 17 ) LASTLY, the learned advocate for the appellants argued that the learned Trial Judge held that the prosecution failed to prove that there was any unlawful assembly and in furtherance of the common object of that assembly, all the accused persons committed the offence in question and for that he was pleased to acquit the other accused persons. According to the learned advocate for the appellants, when the learned Judge was of the opinion that there was no unlawful assembly made by the accused persons, so he was not justified in holding these three appellants guilty, so far as this case is concerned, particularly when the benefit was extended to others. Under such circumstances, he argued that the order of conviction as passed by the learned Trial Judge should be set aside. But I regret, I cannot agree with this argument of the learned advocate. As there was doubt regarding the formation of unlawful assembly by the accused persons, so the learned Trial Judge was pleased to hold that the prosecution failed to prove the charges under section 148 and 149 of the Indian penal Code and while making such observation, the learned Judge acquitted the other accused persons against whom there was no direct evidence available. According to the learned Trial Judge, there are direct evidences, so far as the accused Bhagwan Das, Sunil Das and jogesh Das are concerned. As Such, he observed that whatever offences have been committed by them should be treated to be their individual acts and they should be punished for that. I find nothing illegal in the said finding of the learned Trial Judge. It appears from the Judgment of the learned Trial Judge that he considered the cases of these three appellants separately and individually and thereafter came to the conclusion that these three appellants committed distinct offences in their individual capacity and as such he convicted and punished the appellants accordingly. The decision of the learned Trial judge in this respect appears to be perfectly justified and cannot be said to be illegal, as claimed by the learned advocate for the appellant. The decision of the learned Trial judge in this respect appears to be perfectly justified and cannot be said to be illegal, as claimed by the learned advocate for the appellant. ( 18 ) THEREFORE, from my above discussion, I am of opinion that the learned Trial Judge was perfectly justified in holding the appellant bhagwan Das guilty for the offence under section 304 Part-II of the indian Penal Code and appellant Sunil Das for the offence under section 324 of the Indian Penal Code and also appellant Jogesh Das for the offence under section 342 of the Indian Penal Code and sentenced them accordingly. The order of conviction and the sentence, as passed on the appellants cannot be said to be unjust and improper in view of the circumstances of the case and I find no scope for interference into the decision of the learned Trial Judge. In my considered opinion, the Judgment and order of conviction, as passed by the learned Trial Judge, so far as these three appellants are concerned, should be confined. ( 19 ) IN the result, the appeal is dismissed on contest. The Judgment and order of conviction dated 31-3-1988 as passed by the learned additional Session Judge, Coochbehar in Sessions Trial No. 3 (8)/87 is confirmed. The appellants are directed to surrender before the Court below within one month from the date of the Judgment of this Court, failing which the learned Trial Judge is directed to take step for executing the sentence, as imposed upon them. Let a copy of this Judgment along with the Lower Court Records be sent to the learned Court below at once for information and taking immediate action as indicated above. Xerox certified copy of this Judgment, if applied for, be handed over to the parties on urgent basis. .