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2008 DIGILAW 282 (CAL)

Rashid Alam alias Gabbar v. STATE OF WEST BENGAL

2008-03-10

GIRISH CHANDRA GUPTA, KISHORE KUMAR PRASAD

body2008
Judgement GIRISH CHANDRA GUPTA, J. :- This appeal arises out of an order dated 29th January, 2003 passed by Mr. P. S. Banerjee, Sessions Judge, 3rd Bench, City Sessions Court, Calcutta, in Sessions Trial No. 1 (May) /02 arising out Sessions Case No. 31/2002 convicting the appellant under Section 307 read with Section 34 and Section 332 read with Section 34 of the Indian Penal Code. 2. On 25th July, 1996 at about 8 a. m. in the morning P. W. 1 S. Sakelur Rahman, S. 1 of Park Street Police Station accompanied by three constables, set out from the Park Street Police Station for working out an information concerning two notorious criminals namely Rashid Alam @ Gabbar and Junior. P. W. 1 recorded a diary, marked Exhibit 3 which reads as follows :- "Leaving P. S. along with Constables C. Singh No. K-65, Ekhlaque Ahmed Khan K-30, Rajnath Murmu K-40 for working out an information at Royd Street in connection with notorious anti-socials Gabbar and Junior. " 3. At 9.55 a.m. the police party comprising of P. W. 1 Rahman, P. W. 2 Chiteswar Singh, P. W. 3 Aklat Ahmed Khan and P. W. 7 Rajendra Nath Murmu, noticed that a scooterist dropped the accused Junior and Gabbar and thereafter sped away. Both the accused were chased by the police party. The accused were armed with revolvers and bombs. The accused Gabbar threatened the police party to retreat or else he would finish them by throwing bombs. The accused, as a matter of fact, hurled a bomb which exploded. The other accused Junior was carrying a black bag containing bombs. He hurled the bag at the police party. The bag containing bombs exploded and in the process injured the accused Junior himself and the P. W. 7. A huge smoke was created. The accused Gabbar taking advantage of the smoke escaped from the place of occurrence. The accused Junior was overpowered and disarmed. Both the accused Junior and the P. W. 7 were taken to hospital. P. W. 7 was released after first aid. The accused Junior remained in the hospital as an indoor patient and was released on 12th September 1996. The accused Junior thereafter, absconded and according to the police he is now in Arab countries. Both the accused Junior and the P. W. 7 were taken to hospital. P. W. 7 was released after first aid. The accused Junior remained in the hospital as an indoor patient and was released on 12th September 1996. The accused Junior thereafter, absconded and according to the police he is now in Arab countries. The accused Gabbar was subsequently arrested and tried for the charges under Sections 307 and 332 read with Section 34 of the Indian Penal Code. The learned Trial Judge found the accused Rashid Alam @ Gabbar guilty under both the charges. The learned Trial Judge sentenced the accused Gabbar to suffer imprisonment for a period of two years for the offence punishable under Section 332 read with Section 34 of I. P. C. as also to suffer life imprisonment and to pay a fine of Rs. 1000/- for the offence punishable under Section 307 read with Section 34 of I. P. C., in default to suffer rigorous imprisonment for further one year. Both the sentences were directed to run concurrently. The convict has now come up in appeal. 4. Mr. Joymalya Bagchi, the learned Advocate, appearing for the appellant, assisted by Mr. Kabir, submitted that the learned Trial Judge fell into a grievous error in holding the accused guilty under Section 307 of the IPC. He submitted that the bomb hurled by the accused Gabbar did not hurt any one and, therefore, this could at best be an attempt to commit an offence under Section 324 of the I. P. C. 5. Mr. Ganguly, the learned Advocate, appearing for the State, submitted that the case indeed is one under Section 307 of the I. P. C. because the intention of the accused was to kill the members of the police party which would be evident from the evidence adduced in this case. He drew our attention to Exhibit 4 which is the diary recorded by the P. W. 1, which is also the earliest document in writing, at 15.25 hours on 25th July, 1996. He drew our attention to Exhibit 4 which is the diary recorded by the P. W. 1, which is also the earliest document in writing, at 15.25 hours on 25th July, 1996. From the aforesaid diary, he read out the following portion :- "In course of the chase I noticed Gabbar and Junior both are carrying revolvers in their hand and black colour bag apparently containing bombs as we reached at close proximity to them and with due warning asking them to stop, they brandished their revolvers and started shouting and saying "bomb markar khatam kar dega ". " 6. Mr. Ganguly also drew our attention to the evidence of the P. W. 1 which is as follows :- "We chased those persons. Both of them had revolvers with them and they had also bombs with them. We were giving them warning to stop all the time. When we reached nearer to them, Gabbar threatened us to leave the place otherwise he will hurl bomb. In fact, he hurled a bomb which exploded. " 7. P. W. 2 Chiteswar Singh has corroborated the evidence of the P. W. 1 by saying that Gabbar had threatened to hurl a bomb and thereafter he threw a bomb which exploded. Similarly, P. W. 3 deposed that Gabbar was threatening to hurl a bomb unless they retreated. P. W. 7 has also corroborated the aforesaid evidence. Mr. Ganguly, therefore, submitted that it is not correct to say that there was no intention to kill on the part of the accused Gabbar. There is some substance in the submission made by Mr. Ganguly but sight cannot be lost of the fact that both Gabbar and Junior were armed with revolvers. If the intention of Gabbar was to kill, he would have shot from the revolver rather hurling the bomb. We are of the view that by hurling the bomb, the accused intended to cause grievous hurt in order to ensure and/or to facilitate their escape from the place of occurrence. 8. We find no substance in the submission of Mr. Bagchi that no one was hurt by the bomb thrown by the accused Gabbar. That no one was hurt is only a fortuitous circumstance. The accused Gabbar intended to cause grievous hurt to the police party and with that intention he had thrown the bomb which had also exploded. 8. We find no substance in the submission of Mr. Bagchi that no one was hurt by the bomb thrown by the accused Gabbar. That no one was hurt is only a fortuitous circumstance. The accused Gabbar intended to cause grievous hurt to the police party and with that intention he had thrown the bomb which had also exploded. It could have caused grievous hurt to the members of the police party, pedestrians or any one who happened to be there which is also illustrated by the fact that the bomb hurled by Junior had caused grievous hurt to himself and minor injury to the P. W. 7. We, therefore, are of the view that this is a case where the conviction should have been for an attempt to cause grievous hurt punishable under Section 326 read with Section 511 of the Indian Penal Code. In view of the reasoning given above, the conviction recorded and sentence imposed upon the appellant under Section 307 read with Section 34 of I.P.C. by the Trial Court are set aside but the appellant is convicted for the offence punishable under Section 326 read with Section 511 of I. P. C. 9. At the same time we further hold that the order of conviction of the appellant for the offence punishable under Section 332 read with Section 34 of I. P. C. having been well founded, we are not inclined to interfere with the same. We shall not award separate sentence for the offence punishable under Section 332 read with Section 34 of I.P.C. in view of the substantive sentence being awarded for major offence punishable under Section 326 read with Section 511 of I. P. C. It is trite that if the case is established the accused can be convicted both under major and minor offences but no separate sentence need be awarded for minor offence in view of the substantive sentence being awarded for major offence. 10. We cannot but record our dissatisfaction as regards the hurry and haste shown by the learned Trial Judge in inflicting the sentence immediately after holding the accused guilty. The Trial Court should, as a matter of rule, give sometime to the accused who has been held guilty to reflect on the question and to make his submission on the question of punishment. We may point out that conviction and sentencing are two different things. The Trial Court should, as a matter of rule, give sometime to the accused who has been held guilty to reflect on the question and to make his submission on the question of punishment. We may point out that conviction and sentencing are two different things. The first part of the trial comes to an end once the accused is convicted. Sentencing is a different chapter altogether and for that purpose both the parties are entitled to lead evidence, if they so desire ". If any authority is needed reference may be made to the judgment reported in AIR 1977 SC 1066 : (1977 Cri LJ 642) in the case of Narpal Singh and Ors. v. State of Haryana wherein Their Lordships applied the law laid down earlier "In Santa Singh v. State of Punjab ( (1976)4 SCC 190 : AIR 1976 SC 2386 : (1976 Cri LJ 1875) this Court has taken the view that under the provisions of the Code of Criminal Procedure 1973, it is incumbent on the Sessions Judge delivering a judgment of conviction to stay his hands and hear the accused on the question of sentence and give him an opportunity to lead evidence which may also be allowed to be rebutted by the prosecution ". Therefore, the learned Trial Court shall do well to keep the aforesaid view of this Court and the Supreme Court in mind and be a little more patient before pronouncing the punishment. 11. Now, the question is what punishment should be inflicted? Mr. Bagchi in answer to our question as regards punishment urged this Court to reduce the sentence to the period already undergone. From the evidence of P.W. 9, we gather that a few days prior to the incident with which we are concerned, the accused was involved in Park Street P.S. Case No. 365 dated 4th July, 1996 under Sections 148, 149, 307 of the I.P.C. and Sections 25(ib) and 27 of the Arms Act, and the same was charge-sheeted and the case was pending before the 9th Metropolitan Magistrate, Calcutta for commitment. This fact is not in dispute. Considering all aspects of the matter we are of the view that rigorous imprisonment for a period of ten years as also to pay fine of Rs. This fact is not in dispute. Considering all aspects of the matter we are of the view that rigorous imprisonment for a period of ten years as also to pay fine of Rs. 1000/-, in default to suffer further rigorous imprisonment for six months for the offence punishable under Section 326 read with Section 511 of I.P.C. will serve the purpose of justice. The appellant is accordingly sentenced to suffer rigorous imprisonment for a period of ten years as also to pay fine of Rs. 1000/- in default to suffer further rigorous imprisonment for six months. The appellant is in custody and he is directed to serve out the remaining part of his sentence as indicated above. 12. The appellant shall get the benefit of set-off in terms of Section 428 of Cr.P.C. out of the period of imprisonment already undergone. 13. The Learned Chief Judge, City Sessions Court, Calcutta at Bichar Bhawan is directed to issue necessary revised Jail-Warrant as required by the Rules in respect of this appellant. 14. With this modification, the appeal is partly allowed. 15. Lower Court Records with a copy of this judgment to go down forthwith to the Learned Chief Judge, City Sessions Court, Calcutta at Bichar Bhawan for information and necessary action. 16. Urgent xerox certified copy of this judgment, if applied for, be delivered to the Learned Advocate for the parties on compliance of all formalities. 17. KISHORE KUMAR PRASAD, J. :-- I agree. Appeal partly allowed.