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2008 DIGILAW 1074 (CAL)

Shyamapada Mondal v. STATE OF WEST BENGAL

2008-12-17

GIRISH CHANDRA GUPTA, KISHORE KUMAR PRASAD

body2008
Judgment Girish Chandra Gupta, J. This appeal is directed against a judgment and order dated 25th September, 1985, passed by the learned Sessions Judge, Bankura, in Sessions Trial No. 2 of May, 1985, arising out of Sessions Case No. 5 of April, 1985, convicting the appellant, Shyamapada Mondal, for the offence punishable under section 304 Part II of the Indian Penal Code as also for the offence punishable under section 325 of the Indian Penal Code and was also sentenced to suffer rigorous imprisonment for eight years for the first named offence. He was also sentenced to suffer rigorous imprisonment for three years as also to pay a fine of Rs.500/-in default to suffer further rigorous imprisonment for a period of six months for the second named offence. Both the substantive sentences were directed to run concurrently. The co-accused, Bankim alias Balaram Mondal, was acquitted of the charge under section 325 read with section 34 of the Indian Penal Code. 2. The convict came up in appeal. 3. Briefly stated the facts and circumstances of the case are as follows: On 21st December, 1983, at about 1.30 p.m. the appellant, Shyamapada Mondal, and Bankim alias Balaram Mondal assaulted the deceased Ajit Ghosh after an altercation concerning alleged non-payment of the price of two cups of tea taken on 20th December, 1983. The deceased, Ajit Ghosh, and his brother, Panchanan Ghosh, the de facto complainant, who is also eye-witness of this incident had, in fact, taken two cups of tea on 20th December, 1983, in the shop belonging to the appellant and others. They had paid the price of two cups of tea in kind, that is to say, 1250 gms of paddy was given by them by way of price for the two cups of tea. The accused, Shyamapada Mondal and Bankim Mondal, are sons of Magaram Mondal. On 21st December, 1983, for alleged non-payment of the price of the said two cups of tea Magaram Mondal called Ajit Ghosh and demanded the price. Ajit Ghosh naturally protested because price had already been paid in kind. Then an altercation followed. Bankim Mondal started slapping Ajit Ghosh. The appellant, Shyamapada Ghosh, took out a lathi from inside the tea stall and hit the same on the front side of the head of Ajit Ghosh. He as a result thereof fell down. Ajit Ghosh naturally protested because price had already been paid in kind. Then an altercation followed. Bankim Mondal started slapping Ajit Ghosh. The appellant, Shyamapada Ghosh, took out a lathi from inside the tea stall and hit the same on the front side of the head of Ajit Ghosh. He as a result thereof fell down. The P.W. 2, Panchanan Ghosh, who was following Ajit Ghosh shifted the victim to Sonamukhi Primary Health Centre where life-saving drug was administered to him, and seeing the condition of the patient serious, Panchanan Ghosh was advised to take the victim, Ajit Ghosh, to Bankura Sammilani Medical College and Hospital. In the Emergency Department of Bankura Sammilani Medical College and Hospital the victim was examined by Dr. Madhab Das when the victim told him that he had been assaulted by the appellant, Shyamapada Mondal. The lathi by which the victim had been assaulted was seized by the police. 4. The autopsy surgeon Dr. De, P.W. 6, deposed that the injury found on the deadbody of the deceased Ajit Ghosh could have been inflicted by that lathi. 5. The P.W. 2, Panchanan Ghosh, the eye-witness, during his cross-examination was suggested as follows: "It is not a fact that while deceased Ajit Ghosh drank a cup of tea in the tea-stall of the accused he had drunk wine, and in that in a drunken state, he quarreled with Bankim after he drank tea and the price of the tea being demanded. It is not a fact that my deceased elder brother repeatedly tried to enter the shop and pushed the accused persons and in doing so in a drunken state he fell down, on a cement pillar by the side of the road and got injuries." 6. It would, therefore, appear that the incident in the main has been admitted by the defence. 7. Two things they have alleged-(a) that the victim at that point of time was under the influence of liquor, and (b) that the injury was suffered by the victim accidentally. 8. This case was put to the autopsy surgeon, Dr. De, P.W. 6. But he denied the same as improbable. The relevant portion of' his evidence in this regard is as follows:- "Injury No.2 cannot be caused by fall on a pillar. This cannot also be caused by an iron-rod attached to any pillar. 8. This case was put to the autopsy surgeon, Dr. De, P.W. 6. But he denied the same as improbable. The relevant portion of' his evidence in this regard is as follows:- "Injury No.2 cannot be caused by fall on a pillar. This cannot also be caused by an iron-rod attached to any pillar. The depressed injury on the upper part of head as I found cannot be caused by fall on a pillar unless the head come straight way to the contact of the pillar. The injury can be caused if the outer region of the fronto-parietal region of the forehead is struck on the cemented pillar it is not generally possible as the part of the forehead cannot come in contact with pillar on this way. The depressed injury I saw on the upper side of the fronto-partietal region cannot be caused by any fall on a pillar, or mile-stone of any height." 9. Besides Dr. Madhab Chandra Das, to whom the name of the assailant was disclosed by the patient which we have already noticed, Dr. Santosh Kumar Mallick, P.W.7, and Dr. Bibhuti Bhusan Mahanty, P.W.12, had also occasion to give medical assistance and/or medical treatment to the victim Ajit Ghosh. 10. Mr. Ashoke Biswas, learned Counsel, appearing in support of this appeal, did not seriously challenge the judgment on merit, except by submitting that the incident is dated 21st December, 1983 whereas the First Information Report was lodged on 24th December, 1983. The delay in lodging the FIR has adequately been explained both in the written complaint as also in his evidence by the de facto complainant. In the written complaint the following statement was made: "I then and there took Dada to Sonamukhi Hospital by Mohini bus and according to the advice of the doctor babu I took him to Bankura Medical College and since then I remained at Bankura for looking after Dada. After Dada having expired this day on 24.12.83 in the morning, I submit this complaint before you in person." 11. In his deposition, the de facto complainant stated as follows: "As I was busy in the matter of treatment of my elder brother, as he was assaulted, I could not go to thana to lodge information there." 12. There is no serious cross-examination on this point either. We, therefore, are of the view that the delay has adequately been explained. 13. There is no serious cross-examination on this point either. We, therefore, are of the view that the delay has adequately been explained. 13. The other submission which he made is that the appellant at the time of the incident was a young man and in connection therewith he drew our attention to Ground No. 2 in the application for admission of appeal which reads as follows: "II. For that the learned Judge having overlooked the appellant was 18 years in age in August, 1985, has erred in law." 14. He also drew our attention to the examination of the appellant under section 313 of the Code of Criminal Procedure where the age of the appellant on the date of examination is stated to be about 18 years. Mr. Biswas submitted that this is a fit case where the convict should have been dealt with by the learned Trial Court under section 4 of the Probation of Offenders Act, 1958. He, however, has fairly conceded that this point was not taken before the learned Trial Judge. When the appellant was asked to make submission on the point of sentence, all that he said to the learned Trial Court appearing from the judgment and order under challenge is as follows: "Heard accused Shyamapada Mondal on the question of sentence. He submits that he has widowed mother and an unmarried sister and he and his elder brother maintain the entire family. I have considered his submission. Having regard at the circumstances of the case and the nature of the offence, I think that accused Shyamapada should be sentenced to suffer rigorous imprisonment for eight years under section 304 Part II of the IPC and he should also be sentenced to suffer rigorous imprisonment for three years and a fine of Rs.500/- and, in default, to suffer rigorous imprisonment for a further period of six months under section 325 of the IPC. Both the substantive sentences should run concurrently." 15. The appeal is of the year 1985. The appellant was released on bail by an order dated 7th October, 1985. That is to say more than twenty-three years have elapsed since thereafter. The objective of the Probation of Offenders Act, 1958, is to prevent conversion of youthful offenders into obdurate criminals as a result of their association with heightened criminals. The appellant as of date is more than 42 years of age. That is to say more than twenty-three years have elapsed since thereafter. The objective of the Probation of Offenders Act, 1958, is to prevent conversion of youthful offenders into obdurate criminals as a result of their association with heightened criminals. The appellant as of date is more than 42 years of age. Therefore, by dealing with the appellant today under the provisions of the Probation of Offenders Act, 1958, by no stretch of imagination one can say that the object of the aforesaid Act shall be fulfilled. On the contrary this will be a case of misplaced sympathy which is likely to send a wrong signal to the society which over the period of last twenty-three years has become more contentious and more intolerant. We, therefore, are unable to accede to the prayer of Mr. Biswas. The learned Trial Judge had no occasion to consider the matter in that light because no such prayer was made before him. We are unable to accept the prayer of Mr. Biswas because today that situation has undergone a sea change. The appellant is no longer a youthful offender. Today he is above 42 years and there is no justification to apply the provisions of the Probation of Offenders Act, 1958, to this case. 16. In the result, the appeal fails and the same is dismissed. The bail granted to the appellant on 7th October, 1985, is cancelled and he is directed to surrender to the bail bond furnished by him. The appellant, Shyamapada Mondal, in connection with Sessions Trial No.2 of May of 1985 arising out of Sessions Case No.5 of April of 1985, is given notice through his learned Counsel, appearing before us, to surrender to the learned Trial Court at once to serve out the sentence awarded by the learned Trial Court. The learned Sessions Judge, Bankura, is directed to take steps to apprehend the appellant, Shyamapada Mondal, so that he may serve out the sentence. 17. Let a copy of this judgment and the Lower Court Records be sent down forthwith to the concerned learned Trial Court for information and necessary action. 18. Let urgent xerox copy of this judgment, if applied for, be delivered to the learned Counsel, for the parties, upon compliance or all usual formalities. Kishore Kumar Prasad, J., I agree. Appeal dismissed.