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2008 DIGILAW 789 (CAL)

Sk. Jabbar v. STATE OF WEST BENGAL

2008-08-05

GIRISH CHANDRA GUPTA, PARTHA SAKHA DATTA

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JUDGMENT Girish Chandra Gupta, J.: This appeal arose out of a judgment and order dated 16th April, 1991 passed by the learned Additional Sessions Judge, 2nd Court, Howrah, in Sessions Trial Case No. XXV(1)/88 by which the appellants, Sk. Jabbar, Sk. Bhula, Sk. Anan and Sk. Anar were convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code. The accused Sk. Anwar and Sk. Ansari were acquitted by the said judgement. The convicts were sentenced to suffer imprisonment for life as also to pay fine of R.500/- in default to undergo further rigorous imprisonment for six months. The convicts have come up in appeal. 2. The facts and circumstances of the case briefly stated are as follows :– On 25th July, 1986 at about 10.00 p.m. in the night Habibur Rahaman outraged the modesty of an abandoned woman known as "Nurangini". When her parents came to rescue her, they were severely beaten up by Habibur. The enraged villagers caught hold of the said Habibur Rahaman and beat him up. Habibur as a result died on the spot. Six persons were charge-sheeted by the police in connection with the death of the said Habibur. They stood Trial. The learned Trial Judge has convicted four of them and two of them were acquitted as indicated hereinabove. In so far as the case pertaining to the rape and/or outrage of the modesty of the said Nurangini is concerned, the evidence of the Investigating Officer was that a case was started but considering that Habibur accused in that case, had already died the same was filed. The victim Nurangini committed suicide shortly after the incident. 3. Mrs. Chaudhuri, the learned Advocate, appearing in support of the appeal, submitted that the conviction of the appellants for an offence punishable under section 302 cannot be supported for the following reasons : (a) The appellants, no one has deposed, had any enmity or any premeditated intention to kill the deceased Habibur. (b) The deceased Habibur it has come from the evidence of the witnesses including the Investigating Officer, PW. 17, was a terror in the society. He was a dacoit. He already had one of his hands amputated due to blasting of a bomb. (c) The deceased Habibur, an anti-social as he was broke in upon the helpless abandoned woman Nurangini and outraged her modesty. 17, was a terror in the society. He was a dacoit. He already had one of his hands amputated due to blasting of a bomb. (c) The deceased Habibur, an anti-social as he was broke in upon the helpless abandoned woman Nurangini and outraged her modesty. The parents of Nurangini tried to rescue their daughter. The deceased Habibur retaliated and severely injured them. It is this incident which enraged the villagers. It is this incident which provoked the appellants to engage in a quarrel with the deceased Habibur. This quarrel culminated in assault and death of the said Habibur. (d) There is nothing on the record to show that the appellants acted either in any unusual manner or in a cruel manner or that they took advantage and far less any undue advantage of this situation. 4. She concluded by saying that the appellants are really the victims of the circumstance. They had gone to provide humane assistance to the victim Nurangini and her parents. It is a case, according to her, where the proverb "the path to hell is paved with all good intentions" has been vindicated. She, therefore, submitted that the judgment should be set aside in toto. If that were not possible, the minimum punishment for this homicide not amounting to murder, should be inflicted upon her clients. 5. Mr. Goswami, the learned Public Prosecutor, did not dispute the fact that there was serious provocation which led the appellants to engage in the quarrel which culminated in the death of Habibur. He has not seriously disputed any of the submissions of Mrs. Chaudhuri. 6. We have considered the submissions advanced by the learned Advocates, appearing for the parties. We have also gone through the evidence. 7. The autopsy surgeon in his evidence admitted that the injuries appeared to him to have been inflicted by chela bans (split up bamboos), fists and blows. He was unable to give any definite opinion whether the injuries appearing on the person of the deceased appeared to him to have been caused by assault contributed by a large number of public. The autopsy surgeon in his evidence admitted that the injuries appeared to him to have been inflicted by chela bans (split up bamboos), fists and blows. He was unable to give any definite opinion whether the injuries appearing on the person of the deceased appeared to him to have been caused by assault contributed by a large number of public. The autopsy surgeon may not have been in a position to give any definite opinion with regard thereto but the evidence on the records suggests that a large number of people had collected at the place of occurrence and they had caught the deceased Habibur in connection with the matter already discussed above. 8. We are of the view that the conviction under section 302 IPC cannot be upheld. There can be no denial of the fact that the appellants never intended to cause death of the deceased nor did they have according to the evidence before us any enmity with the deceased. We are also convinced that if the deceased had not indulged in outraging the modesty of the abandoned helpless woman Nurangini, this incident would not have happened. 9. The death was undoubtedly homicidal in nature but it did not amount to murder. The conviction, as such, should have been under section 304 Part II of the Indian Penal Code. The sentence awarded by the learned Trial Court is reduced to 5 years rigorous imprisonment. The amount of fine fixed at Rs. 500/- shall remain unaltered. In default of payment of this fine, they shall undergo further simple imprisonment for three months. 10. The appellants, it appears, were enlarged on bail by an order dated 3rd May, 1991. They are directed to surrender to the bail at once. Notice in this regard is given to the appellants through the learned Advocate appearing before us. 11. The learned Trial Court is directed to take steps for apprehension of the appellant No.1, Sk. Jabbar, appellant No.2, Sk. Bhula, appellant No.3, Sk. Aman and the appellant No.4, Sk. Anar in connection with Sessions Trial Case No. XXV(1) of 1988 dated 16th April, 1991 at once and to report back the compliance. 12. Let a copy of this judgement along with the Lower Court Records be sent down to the concerned learned Trial Court forthwith for information and necessary action. 13. Aman and the appellant No.4, Sk. Anar in connection with Sessions Trial Case No. XXV(1) of 1988 dated 16th April, 1991 at once and to report back the compliance. 12. Let a copy of this judgement along with the Lower Court Records be sent down to the concerned learned Trial Court forthwith for information and necessary action. 13. Urgent xerox certified copy of this order, if applied for, be handed over to the parties upon compliance of all formalities. Partha Sakha Datta, J.: I agree. Appeal allowed in part.