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2008 DIGILAW 643 (CAL)

Gopal Ghosh v. Bonita Ghosh

2008-06-30

SANKAR PRASAD MITRA

body2008
Judgment :- (1) THE application under Section 401 read with Section 482 of Cr. P. C. filed by the petitioner, Gopal Ghosh (convict) is taken up for hearing in the presence of learned Advocate for the petitioner, Mr. Sanjoy Chakraborty and learned Advocate for the State, Ms. Minoti Gomes. (2) IN this application the petitioner has challenged the propriety of the judgment and order dated 3rd July, 2006 passed by learned Additional Session judge, Kalna, District Burdwan in Criminal Appeal No. 01 of 2006 affirming thereby the conviction and sentence passed by learned Assistant Session judge, Kalna, District Burdwan against the petitioner in Sessions Case No. 307 of 1991 dated 20/12/2005. (3) THE trial in the Court below was stated on the basis of a FIR lodged by the de facto complainant, O. P. No. 1, Bonita Ghosh and as a result manteswar P. S. Case No. 29 of 1991 dated 16th March, 1991 was registered and investigation was started. The I. O. after completion of investigation submitted charge sheet against the petitioner and others under Section 338/ 304a/304/34 of I. P. C. The backdrop of the case is that on 13th March, 1991 at about 5. 30 p. m. accused Kshudubala could not trace one of their ducks in spite of sincere search, she went to the house of the de facto complainant, bonita Ghosh, O. P. No. 1 and charged her for stealing the duck and hiding the same in her house. Thereafter, the accused Kshudubala left the house of the de facto complainant and after some time Kshudubala along with other accused persons including the petitioner came in front of the house of the de facto complainant armed with lathi, brick-bats etc. and started pelting brick-bats towards the de facto complainant and her husband, Basudeb Ghosh who was then engaged in cutting straw. The brickbats thrown by the petitioner hit basudeb on his head causing bleeding injury and as a result he fell to the ground and lost sense, the neighbour of the village took him to burdwan Hospital where he succumbed to his injury. A postmortem was held on the dead body of the victim and the I. O. after completion of investigation submitted charge sheet against the petitioner and others as indicated above. The Session Case no. A postmortem was held on the dead body of the victim and the I. O. after completion of investigation submitted charge sheet against the petitioner and others as indicated above. The Session Case no. 306 of 1991 in respect of Gopal Ghosh, Biswanath Ghosh, Dinabandhu ghosh and Kshudubala Ghosh was held before Assistant Session Judge at kalna, District Burdwan where the petitioner was charged under Section 304 of I. P. C. whereas the other accused persons were charged under Section 338/304a of I. P. C. The learned trial Court after recording evidence of witnesses and taking into account all the circumstances, convicted the present petitioner under Section 304 of I. P. C. and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year, whereas, the other convicts, namely, Biswanath ghosh, Kshudubala Ghosh, Dinobandhu Ghosh were sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- each in default to suffer simple imprisonment for six months for the offence under section 338 of I. P. C. (4) AGAINST this judgment dated 20th December, 2005 the petitioner including other accused persons preferred an appeal before learned Additional session Judge Kalna, District Burdwan where the appeal of the petitioner was registered as Criminal Appeal No. 01 of 2006 whereas the appeal filed by the other convicts was registered as Criminal Appeal No. 07 of 2005, The learned additional Session Judge after hearing dismissed the appeal No. 01 of 2006 preferred by the present petitioner and thereby maintained the order of conviction and sentence imposed upon Gopal Ghosh by the Assistant Session judge, Kalna. However, Criminal Appeal No. 07 of 2005 preferred by other convicts was allowed and the order of conviction and sentence passed by the learned Assistant Session Judge against them was set aside and they were released from bail bonds. (5) BEING dissatisfied with the judgment passed by the learned additional Session Judge, Kalna, district Burdwan dated 3rd July, 2006 passed in Criminal Appeal No. 01 of 2006 the petitioner has preferred this application alleging that the learned Court below could not appreciate the facts and circumstances of the case and thereby affirmed the conviction of the petitioner under Section 304 of I. P. C. and sentence imposed upon him. The learned court below did not take into account how the incident occurred as well as the mitigating circumstances so as to come to the conclusion that the offence alleged to have been committed by the petitioner should come under Section 304 Part II of I. P. C. Had it been considered properly the Court below could not pass severe sentence. (6) MR, Sanjoy Chakraborty, learned Advocate appearing for the petitioner, drawing my attention to the facts of the case including the deposition of P. W. 1, Bonita Ghosh, wife of the victim and P. W. 3, Nemai Ghosh, a neighbour of the same village submits that the accused did not carry any brickbat with him at the P. O. , however, in the melee the accused petitioner collected brick-bat from the hand of Kshudubala on the spot and hurled the same rashly which hit the victim who sustained injury and fell to the ground and lost sense and subsequently he died at hospital. The testimony of P. W. 3 also indicates that Basudeb Ghosh, victim fell to the ground after the brick bat hit him on his head thrown by the petitioner and as a result he sustained bleeding injury and lost his sense and ultimately succumbed to death. Learned. Advocate for the petitioner drawing my attention to cross-examination of P. W. 1 at page 4 submits that the de facto complainant, widow of the victim has admitted in her evidence that she never stated anything neither in the FIR nor in her evidence that the accused person came to her house with other accused persons being armed with brick-bats. Mr. Chakraborty drawing my attention to the records of the case submits that the incident occurred as one of the ducks of the petitioner was suspected to be stolen by O. P. No. 1, de facto complainant and her husband and since a demand for return of the same was practically denied, Kshudubala went to the house of the victim along with other accused persons including the petitioner and they started pelting brick-bats to the house of the de facto complainant and one of the brick-bats thrown by the petitioner unfortunately hit the victim who sustained injury and fell to the ground, lost his sense and ultimately succumbed to death. According to Mr. Chakraborty there was no premeditation to kill Basudeb Ghosh, the victim. According to Mr. Chakraborty there was no premeditation to kill Basudeb Ghosh, the victim. On the contrary, over a trivial issue of theft of a duck altercation ensued and on the spur of the moment in the heat of passion the petitioner hurled brick-bat after collecting the same from Kshudubala which unfortunately hit the head of the victim whd fell to the ground and lost his sense and ultimately succumbed to death. Mr. Chakraborty further submits that the petitioner never intended to kill Basudeb Ghosh, victim, nor he had any knowledge that it would hit the head of the victim which would cause his death. He therefore submits that there was existence of provocation over the incident of theft of duck which enraged the petitioner and as a result the offence committed by the petitioner should be brought under Section 304 part II of I. P. C. and a lenient view should be taken in the matter of imposing sentence. In this connection Mr. Chakraborty has drawn my attention to the following cases for better appreciation of the evidence and the circumstances of the case :- (1) 2005 SCC Crl. 161 (Saravanan and Anr. v. State of Pondichery) (2) AIR 1979 SC 577 , (Mohinder Pal Jolly v. State of Punjab,) (3) 2004 Cal LJ 632 (SC) (Bagdiram v. State of M. P.) (4) AIR 1976 SC 392 (Rama Sharya Chakravorti v. State of M. P.) (7) MR. Chakraborty further submits that the petitioner was in custody during the investigation on 03. 04. 1991 to 17. 06. 1991 i.e. 74 days and after trial he was in custody form 20. 12. 2005 to 25. 01. 2006 i.e. 34 days in all 108 days (3 months 18 days) and as such the imposition of sentence by the assistant Sessions Judge, Kalna, affirmed by the Additional Session Judge, kalna, reasonably reduced because the facts and circumstances of the case justified that the petitioner should be sentenced under Section 304 Part II of I. P. C. (8) ON the other hand Ms. Minoti Gomes, learned Advocate for the state submits that it is true that the petitioner was in custody for three months eighteen days during the course of investigation and trial and the incident occurred over a trivial issue which prompted the petitioner and others to hurl brick-bats to the house of the ate facto complainant rashly but, one of the brickbats thrown by the petitioner hit the head of the victim Basudeb who succumbed to injury at Burdwan Hospital. She further submits that the petitioner did not carry any brick-bat with him when he went to the P. O. and P. W. 1 has also admitted in her evidence that the accused persons including the petitioner did not carry any brick-bats with them. Ms. Gomes further submits that the petitioner and the victim are related each other, residing in the same village but on the spur of the moment the petitioner without any intention to kill the victim rashly threw brick-bats without knowing that it would hit and ultimately kill the victim. In the circumstances, Ms. Gomes submits that the offence committed by the petitioner should come under Section 304 Part II of I. P. C, and a lenient view should be taken in awarding sentence. (9) I have seen the judgments of both the Courts below and evidence both oral and documentary on record and it appears to me that incident occurred on the spur of the moment the backdrop of which was suspected theft of duck by the de facto complainant and her husband when one of the accused, kshudubala demanded return of the duck the de facto complainant refused and as such, Kshudubala along with other accused came back and pelted brick-bats one of which hit the victim which was thrown by the petitioner and the victim sustained injury and fell to the ground, lost his sense and ultimately succumbed to death. Admittedly it appears from the evidence of P. W. 1 that the petitioners and others did not carry any brick-bats with them that apart it appears form the evidence of P. W. 1 and P. W. 3 that at the P. O. the petitioner had no brickbats with him but before throwing the brick-bats rashly he collected it from the hand of Kshudubala without knowing that it would hit and ultimately take away the life of the victim. There is nothing on record to show that there was premeditation and the petitioner hurled brick-bats with intention to kill the victim and there is also no evidence on record that the petitioner with ulterior motive threw the brick-bats aimlng at the head of the victim so as to take away his life. In the circumstances, it cannot be said that the petitioner committed an offence which comes under Section 304 Part I of the I. P. C. On the contrary it can be safely concluded that the petitioner committed an offence which comes under Section 304 Part II of I. P. C. This fact was not considered at all by the assistant Session Judge, Kalna and learned Additional Session Judge, Kalna. Thus, considering the facts and circumstances of this case, I find that the decision arrived at by both the Courts below convicting the accused petitioner under Section 304, I. P. C. and sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year is not at all justified. On the contrary considering the facts and circumstances of the case as also the mental agony which he had already suffered during the long pendency of the case, I find that a lenient view should be taken in the matter of imposition of sentence upon the petitioner for commission of an offence punishable under Section 304 Part II of I. P. C. (10) THUS, the petitioner is convicted under Section 304 Part II of I. P. C. and sentenced to undergo simple imprisonment for one year and a half and to pay a fine of Rs. 5,000.00 in default to undergo S. I. for six months. The period of his detention during investigation and trial be set off against the terms of imprisonment under Section 428 of Cr. P. C. (11) THE application is, therefore, allowed in part. The order of conviction and sentence imposed upon the petitioner is modified accordingly. (12) LET a copy of this order be sent to the learned Assistant Session judge for information and taking necessary action. Petitioner is directed to surrender before the Court of learned Assistant Session Judge, Kalna, District burdwan, within a period of fifteen days hence to serve out the sentence. (12) LET a copy of this order be sent to the learned Assistant Session judge for information and taking necessary action. Petitioner is directed to surrender before the Court of learned Assistant Session Judge, Kalna, District burdwan, within a period of fifteen days hence to serve out the sentence. In default the learned Assistant Session Judge shall take necessary steps against the petitioner in accordance with law.