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2014 DIGILAW 746 (CAL)

Haripada Biswas v. State of West Bengal

2014-08-11

INDIRA BANERJEE, SAHIDULLAH MUNSHI

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JUDGMENT INDIRA BANERJEE, J.: This appeal by the appellant is against a judgment and order dated 16th April, 1996 passed by the Additional Sessions Judge, Uttar Dinajpur, holding the accused appellant guilty of offence under Section 302 of the Indian Penal Code for causing murder of one Dipu Roy, hereinafter referred to as the victim, and sentencing him inter alia to suffer rigorous imprisonment for life. It is the case of the prosecution that on the night of 4th March, 1991 at about 22/22:30 Hrs, the accused appellant committed murder of the victim by cutting his throat with a razor, and thereby committed offence punishable under Section 302 of the Indian Penal Code. The dead body of the victim was found in the courtyard of the house of the accused appellant. In course of trial about 12 witnesses were examined on behalf of the prosecution. There was no eyewitness to the incident. The accused appellant was the only defence witness. The accused appellant was also examined under Section 313 of the Criminal Procedure Code. The evidence on record reveals that there was an illicit relationship between the victim and the wife of the accused appellant. On the day of the crime, the victim went to the house of the accused appellant to meet the wife of the accused appellant, when the accused appellant was not at home. All of a sudden the accused appellant returned and there was a scuffle between the victim and the accused appellant, which was neither pre-planned nor premeditated. In his examination under Section 313 of the Criminal Procedure Code, the accused appellant stated that the victim struck him and the villagers sent him to hospital. On the next day he came to learn that the victim had committed suicide by slitting his throat with a razor, since he was in love with the wife of the appellant accused, whom he could not get. The accused appellant pleaded not guilty and in course of trial, also took the plea of exercise of the right of self-defence, since he had been attacked and injured by the victim with a razor. The plea of exercise of right of self-defence raised by the accused appellant was not accepted on the technical ground that the accused appellant had not, in his examination-in-chief, stated that he had exercised the right of private defence. The plea of exercise of right of self-defence raised by the accused appellant was not accepted on the technical ground that the accused appellant had not, in his examination-in-chief, stated that he had exercised the right of private defence. There is preponderance of evidence which establishes that the accused appellant was initially not at home. A scuffle broke out after the accused appellant suddenly returned home to find the victim with his wife, in his absence. A scuffle ensued in which the accused appellant was also injured and had to be hospitalised. The victim died. There is not a scrap of evidence wherefrom it may be deduced that the accused appellant attacked the victim with intention to kill him. On the other hand, there is evidence to the contrary. The attack was not pre-planned. There was no eyewitness evidence with regard to the manner of the death of the victim. On going through the materials and evidence on record we find that the ingredients of conviction under Section 302 of the Indian Penal Code are wholly absent in the instant case. We, thus, hold that the victim was not liable to be convicted under Section 302 of the Indian Penal Code. We accordingly modify the judgment and/or order under appeal by convicting the accused appellant under Section 304 instead of under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years under Section 304 along with fine of Rs.2,000/-. However, since the accused appellant has already suffered imprisonment for about ten years and five months, he may now be released and the bail bonds shall stand discharged. In default of payment of fine, the appellant shall undergo imprisonment for a further period of six months. The records be sent down to the Court below forthwith.