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2011 DIGILAW 756 (CAL)

Subal Roy Alias Fedar v. STATE OF WEST BENGAL

2011-06-08

G.C.GUPTA, RAGHUNATH RAY

body2011
Judgment Gupta, J. 1. THIS appeal is directed against a judgment and order dated 28th June, 2002, passed by the learned Additional Sessions Judge, 1st Court, Jalpaiguri, in Sessions Case No. 328 of 1999 corresponding to Sessions Trial Case No. 35 of 2000 by which all the three accused persons were convicted under Part II of Section 304 of the Indian Penal Code read with Section 34 of the I.P.C. as also under Section 447 read with Section 34 of the I.P.C. For the major offence, the convicts were sentenced to rigorous imprisonment for a period of ten years each as also to pay fine of a sum of Rs.3000/- each, in default to undergo further imprisonment for a year each, and for the offence punishable under Section 447 of the I.P.C, they were sentenced to imprisonment for three months each. Both the sentences were directed to run concurrently. 2. THE facts and circumstances of the case briefly stated are as follows : THE deceased Harani Roy and his sons, namely, Monoranjan Roy, Nakul Roy and Arjun Roy, were engaged in cultivating a piece of land. THE accused persons tried to prevent them from doing so. THE bullocks were untied by them. After a brief exchange of heated words, all the three accused persons jumped upon the deceased armed with deadly weapons like axe. THE deceased Harani Roy fell down on the ground with bleeding injuries. He was shifted to Jalpaiguri Hospital and from there, for better treatment he was sought to be shifted to North Bengal Medical College and Hospital but he died in transit. The accused persons during their examination under Section 313 of the Code of Criminal Procedure did not make any defence. However, from the suggestion given to the witnesses of the prosecution, the case of the defence appears to be that the accused persons were the owners of the land which the deceased was trying to cultivate. It was also suggested that Bhagindar, father of the accused Subal Roy, had , in fact, brought the said Harani Roy from Bangladesh. It is not in dispute that the accused persons used to address the deceased as uncle. It was also suggested that a counter- case had been lodged in which all the sons of the deceased were the accused persons. It is not in dispute that the accused persons used to address the deceased as uncle. It was also suggested that a counter- case had been lodged in which all the sons of the deceased were the accused persons. There is some indication in the written complaint to show that other than the deceased, his sons were also assaulted and all of them had suffered bleeding injury. 3. MR. Banerjee, learned Counsel, appearing in support of the appeal, submitted that there was, in fact, a counter-case started by the accused persons under Sections 147/148/149/326 read with Section 34 of the Indian Penal Code. He submitted that the accused persons were also very seriously injured. There is however, no evidence on the record to indicate that any of the accused persons was injured. 4. THERE is evidence before us from disinterested quarters to show that Harani Roy and his sons were in possession of the land and they had, in fact, been ploughing the same. The accused persons, as already indicated, proceeded on the basis that they were the owners of the piece of land. THERE is also evidence before us from disinterested quarters to show that the accused persons prevented the deceased and his sons from ploughing the land and that is how the occurrence was ignited. THERE is evidence to show that the accused persons were armed with deadly weapons like axe etc. The police during the investigation has obtained a report from the office of the B.L. and L.R.O. from which it appears that the deceased Harani Roy was the one-third undivided owner of the piece of land whereas Subal's father, Bhagindar, was the owner of the balance two- thirds of the land. The report has been marked "Exhibit 4". Therefore, the case sought to be urged by the defence that they were the owners of the piece of land and that their possession was sought to be disturbed by the victim and his sons does not prima facie appear to be correct. We are not pronouncing any judgment on the title of the land. We are merely trying to assess the evidence on the record and to find the credibility of the respective cases. The case of the defence that they were the owners of the land does not appear to be correct based on Exhibit (4). We are not pronouncing any judgment on the title of the land. We are merely trying to assess the evidence on the record and to find the credibility of the respective cases. The case of the defence that they were the owners of the land does not appear to be correct based on Exhibit (4). We, therefore, have no doubt in our mind that the accused persons were the aggressors and it can be safely presumed that the victim and his sons might have tried to retain possession and to defend themselves from the attack initiated by the accused persons and in the process, the accused persons may or may not have received any injury. But that does not, in the least, weaken the case of the prosecution. It was a premeditated act on the part of the accused persons. They were determined to dispossess the victim and his family and in order to achieve the aforesaid object, they appear to have indulged in the aforesaid act. Mr. Banerjee, learned Counsel, appearing in support of the appeal, advanced the following point. 5. THE P.W. 1, Rishi Rani Roy, widow of the deceased, was the de facto complainant. She has also been projected by the prosecution as an eye-witness. 6. MR. Banerjee contended that Rishi Rani Roy admittedly is an illiterate woman. She has subscribed her left thumb impression to the written complaint. She, therefore, had no occasion to cross-check the correctness of the allegations contained in the written complaint. May be the written complaint was drafted on the basis of whatever was stated by the de facto complainant but the veracity thereof is seriously shaken by the fact that the de facto complainant during the trial did not involve all the three accused persons. She deposed as follows : "My husband was assaulted by an axe. Suren and Kalua assaulted my husband with an axe on his head." Mr. Banerjee, therefore, submitted that the conviction of the accused Subal Roy is altogether bad. He buttressed his submission by arguing that the sons of the deceased did not disclose the individual part played by the accused persons. Their evidence is of a general nature and the disinterested witness, the P.W. 5, in this case admitted as follows : "I have not seen who were the assailants of whom." 7. MR. He buttressed his submission by arguing that the sons of the deceased did not disclose the individual part played by the accused persons. Their evidence is of a general nature and the disinterested witness, the P.W. 5, in this case admitted as follows : "I have not seen who were the assailants of whom." 7. MR. Banerjee contended that these are two strong factors which were ignored by the learned Trial Court. Therefore, the conviction of the accused Subal Roy is bad and should be set aside. : 8. THE second submission advanced by Mr. Banerjee, learned Counsel, for the appellants, was that the accused persons were convicted under Section 304 Part II of the Indian Penal Code. He submitted that under Part II of Section 304 of the Indian Penal Code, the highest permissible punishment is imprisonment for ten years. THE learned Trial Court sentenced each of the accused persons to ten years imprisonment. In other words, the highest punishment was awarded. But not a word was spent by the learned Trial Court seeking to justify the act of awarding the highest punishment provided by law. All that the learned Trial Judge said in his judgment in that regard is as follows : "Considering their submissions and at the same time keeping in view the nature of the offence where the victim was assaulted with the blow of the axe by the convicts resulting his ultimate death within few hours and also keeping in mind the excruciating pain the victim had to withstand before his death and the psychological shock the bereaved family had to face and to strike a balance between the crime and punishment I think that imprisonment for 3 months would be reasonable and justified for the offence u/s 447/34,1.P.C. and also I think that imprisonment for 10 (ten) years with fine of Rs. 3000/- each i.d. one year further imprisonment each for the offence u/s 304/II/34, I.P.C. will be justified and reasonable." Mr. Banerjee, learned Counsel, for the appellants, contended that it did not possibly occur to the learned Court below that before resorting to inflict the highest punishment, the Court was under an obligation to justify the same by special reasons. 9. MS. Banerjee, learned Counsel, for the appellants, contended that it did not possibly occur to the learned Court below that before resorting to inflict the highest punishment, the Court was under an obligation to justify the same by special reasons. 9. MS. Gomes, learned Counsel, appearing for the State, submitted that there is evidence adduced by eye-witnesses, namely, P.W. 2, P.W.3 and P. W.4 to show that all the three accused persons assaulted the victim which culminated in his death. She, therefore, submitted that the conviction of the accused Subal Roy is not without any basis. 10. WITH regard to the second submission of Mr. Banerjee, learned Counsel, for the appellants, she contended that considering the cruel treatment of the accused persons meted out to a septuagenarian whom they used to address as uncle, the punishment awarded was well deserved. We have considered the rival submissions advanced by the learned Advocates, for the parties. It is true that all the three sons of the deceased in their evidence have involved all the three accused persons, but it is also true, as contended by Mr. Banerjee, learned Counsel, for the appellants, that their evidence is of a general nature and they have not disclosed the part played by each one of the accused persons which would be evident from their evidence which are as under. 11. P.W. 2 deposed in that regard as follows : " Subal, Kalua and Suren assaulted our father with an axe for which our father fell down on the ground and received bleeding injuries." 12. P. W.3 deposed in that regard as follows : "On reaching the spot we saw the accd. persons with lethal weapons and axe. Subal, Kalua and the son-in law of Subal assaulted our father with an axe which has been produced in Court today (identified Mat. Ext. 1)" P. W. 4 deposed in that regard as follows : "The accd. persons tried to untie the plough when all the three accd. persons pushed my father and thereafter assaulted my father with the axe resulting injury on his head." 13. THE criticism advanced by Mr. Banerjee, learned Counsel, for the appellants, does not appear to be without any substance as also the undeniable fact is that the de facto complainant, projected as an eye-witness, did not attribute any act to the accused Subal Roy. THE criticism advanced by Mr. Banerjee, learned Counsel, for the appellants, does not appear to be without any substance as also the undeniable fact is that the de facto complainant, projected as an eye-witness, did not attribute any act to the accused Subal Roy. THE only other witness, P.W. 5, did not notice who assaulted whom. 14. CONSIDERING the state of evidence, doubt as regards complicity of the accused Subal Roy alias Fedar cannot be dispelled altogether. We are, therefore, inclined to give him the benefit of doubt. As regards the second submission of Mr. Banerjee, iearned Counsel, for the appellants, we already have set out the reasoning advanced by the learned trial Court. It can be pointed out that the reasoning advanced by the learned Trial Court is not really directed against, the quantum of punishment but is directed against the conviction of the accused persons, 15. THE punishment awarded to the appellant No. 2, Surendra Barman alias Surenda, and the appellant No. 3, Kalua Roy, in connection with Sessions Trial No. 35 of 2000 arising out of Sessions Case No. 328 of 1999, is, therefore, reduced to seven years rigorous imprisonment. 16. BOTH the sentence and the conviction of the appellant No. 1 Subal Roy alias Fedar, in connection with Sessions Trial No. 35 of 2000 arising out of Sessions Case No. 328 of 1999, are set aside. He is discharged of the bail bond furnished by him. The punishment of the appellant Nos. 2 and 3 under Section 304 of the Indian Penal Code is modified, as indicated above. 17. THE appellant. No. 2, Surendra Barman alias Surenda, and the appellant No. 3, Kalua Roy, are directed to forthwith surrender and to serve out the revised sentence, as indicated above. THE concerned learned Trial Court is directed to issue revised jail warrant. In the event the aforesaid appellant Nos. 2 and 3 do not voluntarily surrender, the concerned learned Trial Court shall take necessary coercive measure to secure their presence. Needless to mention that the appellants No. 2 and 3 shall get the benefit of set off under Section 428 of the Code of Criminal Procedure. 18. IN the result, the appeal partly succeeds. Let a copy of this judgment be sent down by the concerned Department of this Court to the learned Court below concerned forthwith for information. 19. Needless to mention that the appellants No. 2 and 3 shall get the benefit of set off under Section 428 of the Code of Criminal Procedure. 18. IN the result, the appeal partly succeeds. Let a copy of this judgment be sent down by the concerned Department of this Court to the learned Court below concerned forthwith for information. 19. THE concerned Department of this Court is also directed to forthwith send down the Lower Court Records to the concerned learned Court below. 20. LET urgent xerox certified copy of this order, if applied for, be delivered to the learned Counsel, for the parties, upon compliance of all usual formalities.