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2012 DIGILAW 1065 (CAL)

Ram Babu Shaw v. State

2012-12-21

TOUFIQUE UDDIN

body2012
JUDGMENT : - Toufique Uddin, J.: This appeal arose out of an application under Section 26 of the West Bengal Children Act, 1959 and/or Section 389(2) of the Code of Criminal Procedure concerning the order dated 28.6.1990 passed by the learned Metropolitan Magistrate, Calcutta in charge of Juvenile Court, Salt Lake City, Calcutta in G.R. Case No. 8 of 1982 under Section 326 of the Indian Penal Code convicting and sentencing the accused/appellant to undergo imprisonment for three years. 2. In the background of this appeal, the fact in a nutshell is that on 5.1.1982 at about 7.25 A.M. the accused alongwith his mother started abusing the defacto complainant Smt. Manjushree Bhattacharya. When she protested, the accused hit with a tube light while his mother assaulted with the help of an iron rod. As a result, PW 2 sustained bleeding injuries on her right eye and on different parts of her body. The alleged incident took place in the ground floor at Premises No. 164F, B.B. Ganguly Street, Calcutta. Police investigated the case and submitted charge-sheet against the accused and her mother under Section 326/34 IPC. The accused Rambabu was forwarded to the learned court below as he was a Juvenile. The accused person was examined under Section 251 of Code of Criminal Procedure and the substance of accusation were read over and explained to them when they pleaded not guilty and claimed to be tried. To contest this case the prosecution examined as many as 9 witnesses while the defence examined none. 3. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross-examination and the statement given by the accused at the time of examination under Section 313 of the Code of Criminal Procedure is the denial of offence with a plea of innocence. 4. On hearing of both sides the learned trial judge convicted the accused for offence under Section 326 IPC and sentenced to suffer imprisonment for three years. 5. Needless to mention that the mother of the accused/present appellant was also tried for the said offence and convicted by the learned Metropolitan Magistrate, Calcutta and ordered to pay a fine of Rs. 500/- and to undergo rigorous imprisonment for three months. 5. Needless to mention that the mother of the accused/present appellant was also tried for the said offence and convicted by the learned Metropolitan Magistrate, Calcutta and ordered to pay a fine of Rs. 500/- and to undergo rigorous imprisonment for three months. Against that order of conviction Criminal Appeal No. 18 of 1986 was taken before the learned Chief Judge, City Civil Court, Calcutta by the mother of the accused/appellant. The learned Chief Judge, Calcutta allowed the said appeal in part directing her to pay a fine of Rs. 500/- in default to suffer imprisonment for a month. In the case, no Police Officer was examined to prove either the FIR or the seizure list. The accused/appellant was denied of the opportunity of cross-examining the witnesses with reference to their statements, recorded under section 161 of the Code of Criminal Procedure in accordance with the provisions of Section 162 of the Indian Penal Code and Section 145 of the Evidence Act. The learned Metropolitan Magistrate, Calcutta in-charge of Juvenile Court was not pleased to deal him under Section 26 of the West Bengal Children Act, 1959 but convicted the appellant and sentenced him to suffer imprisonment for three years. 6. Being aggrieved by and dissatisfied with the said order of conviction and sentence, the present appellant convict launched this appeal on the ground mainly that there was no mark of injury of PW 2 and PW 3 and PW 5 were not present at the time of assault, seizure list was not proved by the I.O., yet it was marked as Ext. and the learned Magistrate not having followed the procedure enumerated in Section 26 of the said Act convicted the Juvenile delinquent without recording reasons. 7. Now, the point for consideration is if the impugned judgment is sustainable in the eye of law or not. 8. The FIR, Ext. 6 was narrated by the victim Manjushree Bhattacharya. In reference to that, some evidence are required to be looked into. From the evidence of PW 2 it transpires that over the casting of spell there was alleged incident. The complainant stated that her daughter, her son and her husband saw the incident that the child accused Ram Babu hit her on the date of occurrence by a tube light causing extensive damage of her one of the eyes forever and he was hospitalized for 28/29 days. The complainant stated that her daughter, her son and her husband saw the incident that the child accused Ram Babu hit her on the date of occurrence by a tube light causing extensive damage of her one of the eyes forever and he was hospitalized for 28/29 days. She further stated that the child accused’s mother Nageswari started assaulting her by an iron rod. But PW 3, the husband of the victim did not say that he saw the incident. He heard the cry of his wife. He saw the injury of wife. He proved blood stained blouse, bra etc. He put signatures on the seizure list. PW 4 is the daughter of victim. He saw that the accused was assaulting her mother by a tube light. PW 5 is the son of the victim. He saw the accused assaulting her mother with a tube light. In cross-examination, he stated that he was standing on the side of his mother and became puzzled. PW 6 is an independent man. He saw the accused assaulted the victim with a tube light. As a result, the right eye of the victim was heavily damaged. He reported the incident to the Police. A suggestion was given to this witness that Manjushree tried to commit suicide and thereby she sustained injuries. It was denied but the injury appears to be not negligible, of course, not commensurate to stove burning injury, as suggested. This being the position, nature of injury as mentioned by the doctor, PW 9 in his evidence shows that there was injury over the upper part of the lid and a small piece of broken glass of ½” was found inside the wound. 9. The learned court below after considering the evidence of all concerned came to the conclusion that the child accused was guilty and sentenced him for a term of three years. 10. The learned counsel for the State supported the findings of the learned court below. 11. It was contended by the learned counsel for the petitioner that the I.O. in this was not examined, the FIR was not proved by the I.O. who recorded it, PWs 3 and 5 were not eye witnesses, Seizure list was also not proved by the I.O. etc. etc. 11. It was contended by the learned counsel for the petitioner that the I.O. in this was not examined, the FIR was not proved by the I.O. who recorded it, PWs 3 and 5 were not eye witnesses, Seizure list was also not proved by the I.O. etc. etc. Also it was contended by him that above all why the learned counsel did not deal with the accused under Section 26 of the West Bengal Children Act, 1959 is not clear. 12. A careful scrutiny of the evidence on record shows that the prosecution was able to prove the case of assault causing grievous hurt by the child accused to the victim Manjushree. True the I.O. in this case has not been examined. But it is settled principle of law that non-examination of the I.O. is not very fatal if any prejudice is not caused for such non-examination to the accused/convict. In the instant case, there was no occasion to give suggestion for the purpose of taking contradiction from the I.O. as nothing transpired from the main witness in this regard. Therefore, the question of confrontation under Section 145 of the Evidence Act does not come to play here. 13. But the other aspect is the learned trial court did not deal with the child accused under the provisions of Section 26 of the said Act by stating that the offence committed is serious in nature. There is nothing in the order to show that the appellant was unruly or of bad character or he is not a fit person to be sent to reformatory or borstal school. Simply, commenting that the offence is of serious nature alone is not sufficient to deny him of the privileges offered under Section 26 of the said Act. The order is totally conspicuous over this aspect. Admittedly, the impugned sentence appears to be too harsh in consideration of the age of the appellant. I am of the view that the order of conviction is liable to be affirmed but the sentence should be set aside. 14. Having considered the nature of allegation, the age of the child convict, the absence of any previous conviction or blemished character, I am of the view that he should have been given the benefit of Section 26(1)(b) of the said Act instead of sentencing him to Jail. 15. The delinquent preferred the appeal from Jail. 16. 14. Having considered the nature of allegation, the age of the child convict, the absence of any previous conviction or blemished character, I am of the view that he should have been given the benefit of Section 26(1)(b) of the said Act instead of sentencing him to Jail. 15. The delinquent preferred the appeal from Jail. 16. Accordingly, the appeal succeeds in part. The impugned judgment is modified. 17. The LCR be sent back to the learned court below with a direction to give due admonition to the juvenile delinquent under Section 26(1)(b) of the West Bengal Children Act, 1959 and thereafter discharge him. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.